DISSENTING OPINION.
WOODSON, J.The plaintiff instituted this suit in the circuit court of St. Clair county, against the defendant, to recover $10,000 as damages for a breach of covenant of seizin and warranty. A trial was had, which resulted in a judgment for the plaintiff in the sum of one dollar. From that judgment the plaintiff duly appealed.
The facts of the case are practically undisputed, and are substantially as follows, as appears from respondent’s statement of the case, to-wit:
On June 20, 1899, J. A. Lucksinger, the respondent, a resident of St. Clair county, Missouri, executed *19and delivered to Charles C. Henry of Kansas City, Jackson county, Missouri, a deed with covenants of warranty, conveying Surveys 13 and 25 in Block 230, Foley county, Texas; the consideration named in the deed was “one dollar and other lands.” On April 10, 1902, the grantee named in the Lucksinger deed, Charles C. Henry and wife, made a special warranty deed to the same land to the appellant A. M. Coleman; the consideration recited in this deed was “five dollars and exchange of property.” On September 17, 1904, A. M. Coleman, the grantee in the deed from Henry, filed this suit in the circuit court of St. Clair county, Missouri, wherein she seeks to recover from J. A. Luck-singer, who conveyed to Charles C. Henry, the sum of $10,000 in damages; her petition alleging that the title to the lands in Foley county, Texas, had entirely failed and that the measure of her damages was its market value, and that it was of the reasonable market value of $10,000.
The evidence shows that the appellant, who was plaintiff below, introduced no evidence as to the consideration passing from Henry to the respondent, Lucksinger, for the conveyance of the Texas property, nor did she show, or attempt to show what, if anything, she paid to Henry for deeding this property to her. She did not show that she had paid the $5 recited in the deed, or that she had conveyed the other property therein referred to. She tried her case upon the theory that it was of no consequence what damages, if any, she actually sustained, but that the measure of her recovery should be the value of the lands described in the Henry deed without regard to the consideration passed from her to him.
She also introduced testimony tending to show the value of the Texas land, which was substantially as follows:
W. H. Bagin, of Alpine, Texas, who testified, said:
“If it is dry land, it is worth one dollar per acre; if *20it has living water, it is worth four or five dollars per acre; I can’t tell of my own personal knowledge whether this particular property has living water or not.”
The other witness offered as to the value of the Texas land was Charles C. Henry, the grantor of the Texas property in the deed to appellant. He testified that the respondent, Lucksinger, told him that "there was a creek which went through both sections, and there is a little timber along the creek, hut it is mostly prairie.” "That it was pasture land,” and "that the consideration was that it was worth $5 per acre,” and "he, defendant, claimed the land was worth $5 per acre, if I remember right,” also "the consideration between us was $6,000.” And "$6,000 was the value placed upon the property in Texas, and I placed upon my property. I do not know the actual value of either property. I suppose $6,000 was a little more than the property was worth; I never saw the land in Texas. ’ ’ This was the extent of the testimony as to the value of the Texas property.
Appellant also introduced testimony tending to show that respondent had no title whatever to the land which his deed purported to convey to Henry; and it was admitted that neither Henry nor appellant was ever in the actual possession of said land.
Upon that evidence the court instructed the jury to the effect that appellant could receive only nominal damages, to which action she duly excepted.
I. The evidence disclosed by the record shows that respondent in the month of July, 1899, conveyed by deed of general warranty twelve hundred and eighty acres of land, situated in Foley county, Texas, to one Charles 0. Henry, for a consideration of one dollar and other lands, as expressed in the deed. In April, 1902, Henry by deed of special warranty conveyed the same land to appellant for a stated consideration of five dollars and exchange of lands. At the time of the ex-*21edition of the deed from respondent to Henry the former placed the value of the land at $6,000', but no evidence was offered tending to show the value of the land conveyed by Henry to respondent in exchange of the lands in question. At the time of the conveyance to Henry, respondent had no title to the land, and, consequently, a breach of the covenant of seizin occurred instcmter upon the execution of the deed.
Upon that state of facts it is contended by counsel for appellant that there was a breach of the covenant of seizin at the instant the deed from respondent to Henry was signed and delivered; that said covenant ran with the land, and that the deed from Henry to him carries with it and invested in her a right of action for said breach; and that the value of the land at the time respondent conveyed the' same to Henry, in 1899', which the evidence tended to show, was about $6,000.
Upon the other hand, while counsel for respondent concedes that the breach of covenant of seizin was broken as soon as made, yet he contends that it was only a chose in action, did not run with the land, was not assignable at law and cannot be taken advantage of by respondent, a remote covenantee. Counsel for respondent in support of his position relies upon the case of Blondeau v. Sheridan, 81 Mo. 545. The facts of that case were substantially as charged in the petition, which was as follows:
“On January 18th, 1881, plaintiffs filed in the probate court of Buchanan county their demand for $433.-36, against said estate, and, at the April term, 1881, the court found against plaintiffs who then appealed to the circuit court, where they filed an amended petition, alleging, in substance, that McGee died in May,, 1880, and that Sheridan administered on his estate in August, 1880. That plaintiffs are, and since 1872,, have been partners. That on the 10th of January, 1873,, McGee conveyed by deed to Mathias Bradley the north-half of lot No. 10 of block 21, in the town of St. Joseph,, *22in the granting clause thereof, employing the words ‘grant,’ ‘bargain’ and ‘sell,’ the deed containing, also, an express covenant that the grantor, his heirs and executors, etc., would warrant and defend the title to said real estate against the lawful claims of every person whatever. That prior to that time, on the 29th of March, 1872, McGee, the grantor, entered into a written agreement with one Hasting, by which he granted to Hasting, who owned the adjoining lot, the right to extend and build one-half of the thickness of a wall to be erected by said Hasting on the line between said lots, over and on the lot of said McGee (said lot No. 10) the dimensions of said wall to be footing four feet six inches in thickness, upper wall two feet thick, brick wall one foot six inches thick and eighty feet in length, one-half of which the entire length and height to extend over and on lot No. 10, with the further stipulation that said ‘McGee, or his assignee should .at any time, paying one-half the cost of said wall or such part thereof to the said Hasting or his assignee, have the right and privilege of building to and using said wall and make it constitute one of the walls he may choose to erect adjacent thereto, and may use said wall for all reasonable purposes in erecting arid constructing such building.’ That said agreement was duly acknowledged and was, on 9th of April, 1872, filed for record in the recorder’s office of said county. That Hasting erected the wall mentioned in said agreement before McGee conveyed to Bradley.
“That on the 15thday of February, 1875, plaintiffs each became the owner of an undivided half of said lot No. 10 by virtue of conveyances from Mathias Bradley and his grantees, and afterwards mutually .agreed to hold, and have ever since held the same as partnership property. That McGee, at the time of the conveyance to M. S. Bradley, was not seized of an in■defeasible estate in fee simple in said real estate, that it was not free from incumbrance, etc., and that McGee *23had not warranted or defended the title, bnt on the contrary, on the 29th of May, 1875, Lutz, assignee of Hasting, entered said lot No. 10 and evicted plaintiffs from that part of said lot upon which said wall stood, having the right to do so by virtue of the agreement aforesaid, and that plaintiffs were compelled to, and did on the 29th of May, 1875, pay to said Lntz $336.46, in order to extinguish his right and title to said part of said lot, and to said wall to the length of sixty-two feet and eight inches, and that it was worth that sum. And asked judgment for $443.46.” The plaintiff obtained a judgment from which the defendant appealed. In discussing that case, the court, speaking through HeNky, J., on pages 551 to 554, used this language:
“The defendant objected to any evidence on the ground that the petition did not state facts constituting a cause of action. The covenant of general warranty, and two of the statutory covenants, viz: that of seizin and that against incumbrances, are alleged in the petition to have been broken. The facts alleged constituted no breach of the covenant of seizin. ‘ That covenant is not broken by the existence of easements or incum-brances which do not strike at the technical seizin of the purchaser.’ [Rawle on Cov. (3 Ed.), 51.] In Kellogg v. Malin, 50 Mo. 496, it was held that the occupancy of land by a railroad track, under condemnation proceedings, was hut an easement, and could not he relied upon as a breach of the covenant of seizin. There was, however, a breach of the covenant against incumbran-ces, hut where did it occur? It is a covenant m prae-senti and broken as soon as made. [Rawle on Cov. 110.] Again he says at page 336: ‘It is a settled rule on both sides of the Atlantic that until breach, the covenants for title, without distinction between them, run with the land to heirs and assigns. But, while this is well settled, a strong current of American authority has set in in favor of the position that the covenants for seizin,, for right to convey, and perhaps against in-*24cumbrances, are what are called covenants in praesenti. If broken at all, their breach occurs at the moment of their creation; the covenant is that a particular state of things exists at that time, and, if this be not true, the delivery of the deed which contains such a covenant causes an instantaneous breach; these covenants are then, it is held, turned into a mere right of action, which is not assignable at law, which can be taken advantage of only by the covenantee or his personal representative, and can neither pass to an heir, a devisee, nor a subsequent purchaser. ’
“Chancellor Kent, at page 555, 4th volume of his commentaries, says: ‘The covenant of seizin, and of a right to convey, and that the land is free from incum-brances are personal covenants, not running with the land or passing to the assignee; for, if not true there is a breach of them as soon as the deed is executed. But the covenant of warranty and the covenant for quiet enjoyment, .are prospective, and an actual ouster or eviction is necessary to constitute a breach of them, and that the general covenant to warrant and defend the title’ is in effect a covenant for quiet enjoyment. [Page 558.] Our statutory covenant against incum-brances, contained in the words ‘grant, bargain and sell’ is that the real estate was at the time of the execution of such conveyance free from incumbrance. The difficulty which exists when the incumbrance is of a kind which does not affect the possession of the grantee, as in case of a mortgage or a judgment lien, which must be extinguished by the grantee before he can claim more than nominal damages, is not encountered when the incumbrance is such, that, as in the case at bar and in Kellogg v. Malin, supra, the entire damages could at once be ascertained and assessed to the grantee, and there is no way of removing it but by purchase. While it exists, the covenantee cannot have the possession of that portion of the land.
“There was a breach of the covenant the moment *25it was made, and M. S. Bradley then had a right of action, and, the covenant not running with the land, plaintiffs never had a right of action npon it. As to the covenant of a general warranty, the facts alleged showed a breach of the covenant. The note was not only an incumbrance on the lot, hnt Lutz’s rightful possession of it, under the agreement between McGee and Hasting, constituted a breach of the covenant of warranty. ‘Where the covenant is broken immediately no actual eviction or disturbance need he shown.’ [Grannis v. Clark, 8 O'owen 41.] In Grist v. Hodges, 3 Deveraux 200, Ruffen, J., said: ‘The existence of an incumbrance, or the mere recovery in a possessory action under which the bargainee has not been actually disturbed, are held for technical reasons, not to be breaches of a covenant for quiet possession, or in other words of our warranties.’
“But that is a very different case from this, in which the bargainee never, in fact, was in possession, but was kept out by the possession of another under better title existing at the time of sale and deed and ever since. As between the bargainor and bargainee the latter is in by force of the Statute of Uses, but, if there be in reality an adverse possession, he can only be held to be in for an instant; for there will be no implication against the truth further than is necessary to make the deed effectual for its purposes. If such adverse possession be upon title paramount, then there is an eviction of the bargainee eo instante that the possession conferred by the statute takes place. Mr. Rawle says: ‘ The general principle, thus ably explained, has been recognized and applied in many other cases. ’ They are cited in note 2, page 254, and at page 255 he says: ‘ The rule best supported by reason and authority would seem to be this, where at the time of the conveyance, the grantee finds the premises in possession of one claiming under paramount title, the covenant for quiet enjoyment, or of warranty, will be *26held to be broken, without any other act on the part of either the grantee or the claimant.’
“Here was a constructive eviction. The covenan-tee never had actual possession of the strip of land in question, which was held adversely, and when the cove-nantee by reason by the paramount title has never been able to obtain possession of the land, such inability to get possession will be an eviction. [Rawle On Cov. 251.] This is not the case of a party wall, which is a wall for the common use of the proprietors of adjoining estates, to the erection of which each contributes his due proportion of the costs, and each has a right to the use of the entire wall. That is but an easement, but here the wall belonged to Hasting, and, under the agreement, he had possession of a strip of land off of lot ten, adverse to the owner of said lot. It was a permanent structure and as effectually excluded plaintiffs from the possession, as if the owner of the wall had had a paramount title to the strip in question.”
We do not understand this case as counsel for respondent does. While it holds that a covenant against incumbrances is a covenant in praesenti, does not run with the land, is not assignable at law, and cannot be taken advantage of by a remote covenantee, yet it does hold that a covenant of seizin, of quiet enjoyment, etc., does run with the land, and that a. remote covenantee may recover thereon against the remote covenanter.
The case at bar is not a suit for a breach of covenant against incumbrances but was for a breach of covenant of seizin. So, instead of the Blondeau case, supra, being an authority supporting respondent’s contention, it is directly opposed thereto and supports the position of counsel for appellant.
The same question again came before this court in the case of Allen v. Kennedy, 91 Mo. 324; and on pages 329 to 331, Black, J., speaking for the court, said: *27state in fee-simple the claim is, that this covenant, if broken at all, is always broken when made, and does not- run with the land. Whatever may he the rule elsewhere, with ns, it is more than a covenant in the present tense. It is rather a covenant of indemnity, •and it has often been held that it runs with the land to the extent that if the covenantee takes any estate, however defeasible, or if possession accompanies the deed, though no title pass, yet, in either event, this covenant runs with the land and inures to the subsequent grantee, upon whom the loss falls. [Dixon v. Desire, 23 Mo. 151; Chambers v. Smith, 23 Mo. 174; Maguire v. Riggin, 44 Mo. 512; Jones v. Whitsett, 79 Mo. 188.]
*26“As to the covenant of seizin of an indefeasible
*27“Both covenants in the Kennedy deed were broken before plaintiff purchased; for Riddle, the owner of the title, had taken possession under it, and Patterson was without title or possession. On this state of the case the contention of the defendant is, that covenants only run with the land until breach; that they then become choses in action, which cannot be assigned. Many authorities do hold that choses in action cannot he assigned so as to enable the assignee to sue in his own name at law, but that is not the law of this state. Damages arising from the breach of the covenants in a deed may be assigned, and when assigned, the as-signee, and he alone, can sue. [Van Doren v. Relfe, 20 Mo. 456.] The only remaining question is, whether the deed to plaintiff will operate as an assignment of the prior covenants so as to protect the assignee as to the damages he has sustained. As having some bearing upon this question, it may be stated that, by our statute, any person claiming title to real estate, may, though there be an adverse possession, convey his interest as if he were, in the actual possession. [R. S. 1879, sec. 673.] Kimball v. Bryant, 25 Minn. 496, was an action on the covenant of seizin in a deed from defendant to Hardy, who conveyed with full covenants *28to the plaintiff. The grantor in the first deed had no title, and it did not appear that he was ever in possession. ' The court said: ‘ The covenant is taken for the protection and assurance of the title which the grantor assumes to pass by his deed to the covenantee; and where the covenantee assumes to pass that title to another, it is fair to suppose that he intends to pass with it, for the protection of his grantee, every assurance of it that he has, whether resting in right of action or in unbroken covenant; so that if, before enforcing his remedy for breach of the covenant, the cove-nantee execute a conveyance of the land, unless there be something to show a contrary intention, it may be presumed that he intended to confer on his grantee the benefit of the covenant so far as necessary for his protection—that is, that he intends to pass all his right to sue for the breach, so far as the grantee sustains injury by reason of it. ’ See, also, Scofield v. The Iowa Homestead Co., 32 Iowa 318.
“In Wead v. Larkin, 54 Ill. 498, the court, after reaching the conclusion that, where the covenantee takes possession and conveys, the covenant of warranty in the deed to him will pass to his grantee, although the covenanter may not have been in possession at the time of his conveyance, proceeds to say: ‘It is not, however, to be supposed, because we do not lay down a broader rule than is required by the case before us, that we hold, by implication, the covenants would not pass if the immediate covenantee should, convey before taking possession.We should be inclined, rather, to say, that, although the covenant of warranty is attached to the land, and for that reason is said, in the books, to pass to the assignee, yet this certainly does not mean that it is attached to the paramount title, nor does it mean that it is attached to an imperfect title, or to possession, and only passes with that, but it means, simply, that it passes by virtue of the privity of estate, created by the successive *29deeds, each grantor being estopped, by bis own deed, from denying that be has conveyed an estate to which the covenant would attach.
“As our covenant of seizin runs with the land, what is there said as to the covenant of warranty is equally applicable to it. The Patterson deed contains full covenants, and it was certainly the purpose to transfer to plaintiff whatever covenants and assurances the grantor held, whether broken or unbroken, and no good reason is perceived why the intention of the parties should not be made effectual; instead of being frustrated and wholly defeated. Had Patterson brought the suit on the covenants, we are of opinion that the deed to plaintiff would have been a complete defense. The plaintiff, on making proof of damages, will be entitled to recover. That many authorities would lead to a different result is conceded, but the reason of many of them is overthrown, when it is shown that choses in action are assignable, that the covenant of seizin runs with the land, as an indemnity to the party who, in fact, suffers the loss, and that real property may be conveyed, though in the adverse possession of another.”
This ease also is a direct authority in support of appellant’s contention. It, in substance, holds that even though the covenant of seizin is broken at the same instant the deed is executed, yet the covenant runs with the land, and a remote covenantee may maintain an action for damages for such breach against the covenanter, even though none of them ever had possession of the land. The same conclusions were reached in the following case: Johnson v. Johnson, 170 Mo. 48.
'We must, therefore, decide this contention in favor of appellant.
II. Counsel for appellant goes one step further, and contends that not only do the covenants of seizin and warranty run with the land, but he also contends *30that the covenant having been broken at the instant it. was made the right of Henry then became a chose in action, assignable by Henry in the same manner and. with the same rights as any other chose in action might-be assigned, and the conveyance of Henry to appellant was an assignment of such chose in action to her,, and that she may maintain snit thereon the same as-on any other'chose in action. In support thereof counsel cites the Allen and Johnson cases, supra, and Winningham v. Pennock, 36 Mo. App. 688; Hendrix v. Dickson, 69 Mo. App. 206; Langenberg v. Dry Goods Co., 74 Mo. App. 20.
In onr judgment that contention is untenable. All of those cases show that the covenant referred to in each ran with the land in favor of subsequent covenan-tees, but not independent of the land, as would the assignment of an ordinary chose in action, as is contended for by counsel for appellant. This is shown by the following language used by Biack, J., on page 330,. in the case of Allen v. Kennedy, supra:
‘£ The covenant is taken for the protection and assurance of the title which the grantor assumes to pass-by his deed to the covenantee; and where the covenan-tee assumes to pass that title to another, it is fair to suppose that he intends to pass with it, for the protection of his grantee, every assurance of it that he has, whether resting in right of action or in unbroken covenant; so that if, before enforcing his remedy for breach of the covenant, the covenantee execute a conveyance-of the land, unless there be something to show a contrary intention, it may be presumed that he intended to confer on his grantee the benefit of the covenant so-far as necessary for his protection — that is, that he intends to pass all his right to sue for the breach, se far as the grantee sustains injury by reason of it.”
To the same effect is the case of Blondeau v. Sheridan, supra.
According to these two cases the covenant of seizin *31passes under each deed with the land as an incident to the title, as it were, and not as an independent assignment, as is true of the assignment of an ordinary chose in action, as before stated, for otherwise the covenant would not pass with the land under succeeding deeds to subsequent covenantees.
The same question was presented to the Supreme Court of Vermont in the case of Tillotson v. Prichard, (60 Vt.), and on page 101 the court said: “Until breach, the covenant passes with the estate by purchase and can he enforced when broken, by the covenantee or his representatives, or, if the éstate has been assigned, by the assignee of the covenantee, who claims under the seizin vested in him. [Rawle on Cov., sec. 213.] The covenant attached to a grant does not pass by the deed from the covenantee to his assignee, but only by the land conveyed. It passes not by the form of the conveyance, but merely as an incident to the land; so when the grantee takes no estate under the grant, no assignment of the land by him can transfer it to the assignee. As it is not capable of a direct transfer, so as to enable the assignee to maintain an action for its breach in his own name, it cannot pass by the operation of the assignment, for it cannot run with the land which the grantee does not have to convey. And this doctrine, Rawle in his work on covenants says, prevails generally throughout the United States.”
The three cases cited from the Court of Appeals were suits for breaches of covenants against incum-brances. The principle underlying those cases does not necessarily apply to a covenant of seizin; and by bearing that fact in mind the apparent conflict between those cases and those of this court disappears. In that view of the case there is no conflict between them.
III. The next point presented by appellant’s counsel .regards her right to sue in the courts of this State for a breach of covenant of seizin affecting land situ*32ated in the State of Texas. In other words, is snch an action local or transitory in character? Counsel for appellant contends that it is of the former class; while, upon the other hand, respondent’s counsel contends it belongs to the latter character.
Counsel for appellant has cited us to no authority-supporting his contention, except the cases before mentioned. If I correctly understand his position, it is this: that the deed from Henry to appellant by implication operated as an assignment of the former’s cause of action for the breach of the covenant of seizin against respondent to her independent of and divorced as it were, from the land, and became thereby a simple chose in action, transitory in character, and that suit was properly brought thereon iu the circuit court of St. Clair county, this State, where respondent resided. If the conclusion reached in paragraph two of this opinion is correct, then this contention must fail as a necessary corollary thereto.
Counsel for respondent, however, has cited us to an abundant authority supporting the contention presented by him. In 8 Amer. & Eng. Ency. Law, p. 222, the law governing such actions is stated in the following language: “As between the original parties to a conveyance, an action for breach of the covenants, being founded on contract, is transitory and need not be brought in the place or county where the land lies, but may be brought in any court of competent jurisdiction. But where the action is brought by a remote grantee of the land on a covenant which runs with the land, his right of action is based on privity of estate, and not on privity of contract. The action then becomes local and must be brought in the place or county in which the land lies. ’ ’
Mr. Rawle, in his excellent work on Covenants for Title (5 Ed.), Sec. 302, states the rule as follows:
*33“Whenever the action of covenant is founded on •privity of contract, it is of course transitory, and the covenantor is liable to suit wherever process may he served upon him. But whenever founded on privity of estate, as for example where the plaintiff, as as-signee of the land, sues upon a covenant which runs with it, the action is of course local, and cannot be sustained unless the land be within the jurisdiction of the court in which the action is brought. This has long been settled, and in a rather late case in Massachusetts, where the plaintiff sued on a covenant of warranty upon the sale of land in Illinois to one under whom the plaintiff claimed through mesne conveyances, the plaintiff was nonsuited on the ground of want of jurisdiction, although both he and the defendant were residents of Massachusetts, and the former was, it was urged, without remedy unless the court should sustain the action.”
At a very early date the question was presented to the Supreme Court of Kentucky, which is conceded by all to be one of the very highest authorities upon the law of real property, and the court said, in the ease of Birney v. Haim, 2 Litt. 262: “If there is no privity of contract, and the action is founded on privity of estate only, such as a covenant that runs with the land in the hands of remote grantees, then the action is local, and must be brought in the county where the land lies. ’ ’ The same conclusion was reached by the Supreme Court of Massachusetts in the case of Lienow v. Ellis, 6 Mass. 331. The court there used this language: “When the action of covenant is founded on privity of contract between the parties, their executors or administrators, it is transitory and may be sued as a transitory action; but when it is founded on privity of estate, the action is then local, and- must be sued in the county where the land lies. In the case before us, if the plaintiff can maintain an action of covenant, *34upon the covenant on which he declares, he must maintain it as assignee of Bartlet, by virtue of his conveyance of the land; and his privity is a privity of estate, and not of contract.”
In White v. Sanborn, 6 N. H. 224, the Supreme Court of New Hampshire held that the fact that the cause of action arose beyond the limits of the State did not render it transitory in character, but that the action was local and should have been brought in the county where the. land lay.
In the case of Barker v. Damer, 1 Salk. 80, the Court of King’s Bench held that where the land was located in Ireland, and the action was brought in England, by a remote covenantee, based upon a breach of covenant running with the land, the action would not lie, because the covenant was local, and the action should have been brought in Ireland.
The same rule is amplified and confirmed in the following cases: Livingston v. Jefferson, 1 Brock. 203; Watts v. Kinney, 23 Wend. 484; Eachus v. Illinois & Michigan Canal, 17 Ill. 534; Worster v. Winnipiseogee, 25 N. H. 525; Lienow v. Ellis, 6 Mass. 331; University of Vermont v. Joslyn, 21 Vt. 52; Watts v. Kinney, 6 Hill 82.
The courts seem to be uniform in holding that the fact all parties to the covenant are residents of a State different from the one in which the land is situated, and that therefore unless the action could be maintained in the State in which the parties reside, the aggrieved party would be without remedy, is wholly immaterial. [8 Amer. and Eng. Ency. Law, p. 223; Clark v. Scudder, 6 Gray (Mass.) 122; Doulson v. Matthews, 4 T. R. 503 (overruling Mostyn v. Fabrigas, 1 Cowp. 161); White v. Sanborn, 6 N. H. 224; Shelling v. Farmer, 1 Stra. 646.]
According to all of the authorities of this country and of England, an action, in favor of a remote coven-antee for a breach of covenant of seizin or other war*35ranty running with, tlie land is based upon privity of estate, and not upon contract. Consequently, they hold that the action is local and must he brought in the State and country where the land is situated, and not elsewhere.
And in my opinion this rule has not been changed or modified by our practice act. Sections 562, 563 and 564, Eevised Statutes 1899, read as follows:
“Sec. 562. Suits instituted by summons shall, except as otherwise provided by law, be brought: . First, when the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may be found; second, when there are several defendants, and they reside in different counties, the suit may be brought in any such county; third, when there are several defendants, some residents and others non-residents of the state, suit may be brought in any county in this state in which any defendant resides; fourth, when all the defendants are non-residents of the State, suit may be brought in any county in this State; fifth, any action, local or transitory, in which any county shall be plaintiff, may be commenced and prosecuted to final judgment in the county in which the defendant or defendants reside, or in the county suing and where the defendants, or one of them, may be found.”
“Sec. 563. Suits commenced by attachment against the property of a person, or in replevin or claim and delivery of personal property, where the specific property is sought to be recovered, shall be brought in the county in which such property may be found; and in all eases where the defendant in actions in replevin or claim and delivery of personal property is a nonresident of the county in which suit is brought, service shall be made on him as under like circumstances in suits by attachment.”
*36“Sec. 564. Suits for the possession of real estate, or whereby the title thereto may he affected, shall be brought in the county within which such real estate, or some part thereof, is situate.”
And section 4345 provides for the bringing of actions for the foreclosing of mortgages against real estate in the county where the premises are situate, etc., and section 4374 provides for the bringing of suits for the partition of real estate, etc.
Clearly section 562 has no application to the case at bar. That section provides that “suits instituted by summons shall, except as otherwise provided by law, be brought,” etc. The language of the statute should be closely scrutinized. The language is that suits “shall, except as otherwise provided by law, be brought, ’ ’ etc., and does not say, except as is provided for in this article or chapter, as is generally the case where the Legislature intended the act to be complete and exclusive upon a matter.
It should also be borne in mind in this connection, that the common law is just as binding and efficacious in its principles as are the provisions of a statute. There is no more magic or power embodied in the latter than is possessed by the former. Each is the law of the land and stands upon an equal if not upon the same basis; and especially is this true when we view it under the light of the provisions of section 4151, Revised Statutes 1899, which provides that the common law of England, etc., ‘ ‘ shall be the rule of action and decision in this State, any law, custom or usage to the contrary notwithstanding.” The authorities before cited conclusively show that under the common law such actions as this .one could only be maintained in the county and state where the land is situate, for the reason stated therein, that they are local and not transitory actions. This being true, then it is to be seen that at the time of the enactment of section 562 there was then in operation in this State a rule of the *37common law which provided that such actions should be brought in the county where the land was located, and not elsewhere. Then under both the spirit and letter of said section, it does not and cannot apply to this action, fox the reason that under the exception thereto it could not apply to those cases where the law as it then existed provided the place where such suits should be brought. Besides this, said section 562 does not purport to abolish the distinction between local and transitory actions, but has reference to the residence of defendant and to the suits that might be -brought against him in the county of his residence, or in that of the plaintiff and where the defendant might be found, or in case he is a non-resident, then such as might be brought against him wherever found in the state. But none of those cases belong to the class of actions called real or local actions, for the obvious reason that sections 563, 564, 4345 and 4374 in express terms provide specially where most of them shall be brought, which may be and often are brought in different counties from those mentioned in section 562. In addition to this, the fifth clause of the latter section in express terms recognizes the existence of both local and transitory actions, and specially provides that when a county shall bring an “action, local or transitory,” it “may be, commenced and prosecuted to final judgment in the county in which the defendant or defendants reside, or in the county suing and where the defendants, or any of them, may be found.” The well-known maxim, expressio unms est exclusio alterius, applies specially to that section. The fact that the Legislature gave to the various counties of the State the right to sue the defendant on any local or transitory cause of action in the county in which he resides, or in the county suing and where the defendant may be found, excludes the idea that the Legislature intended to give that right to- any and all other parties mentioned in that section.
*38It is conceded by all parties that section 563 has no application, for the reason that it relates exclusively to ejectment and replevin suits; and the case at har does not fall in either of those categories.
Nor can it he seriously contended that section 564 is applicable to this case, for the reason that it has reference to real estate located within this State, and not to lands located beyond its domain; but should it be conceded that it, in express terms, referred to lands situate in another state or county, then, clearly, such provision would be void, for the reason that legislative enactments can have no extra-territorial operation, nor can the courts of this State acquire jurisdiction over lands located beyond its boundaries. This is elementary and must he conceded by all.
It is equally clear that neither section 4345 nor 4374 has any application to this case; the former provides where suits for the foreclosure of mortgages shall be brought, and the latter where suits for the partition of real estate shall be brought.
Prom this short resume of the practice act, it seems clear to my mind that it was the design of the Legislature to leave the common law rule as to the place of bringing suit for breaches of covenants which run with the land in full force and unaltered.
This is made more apparent when we recall the fact that none of the sections of the statute before mentioned, either in express terms or by implication, purports to abolish local actions, or to change the common-law rule as to the place where such suits shall be brought, except in the fifth clause of section 562 where the various counties of the State are authorized to bring such suits, as well as transitory actions against the defendant in the county where he resides, or in the county bringing the suit and where the defendant may be found, regardless of the location of the subject-matter of the suit. No other section or part of a section undertakes to change the common law rule in that *39regard. And nothing before stated is militated against in the least by wbat is said in tbe following cases relied upon by appellant: Oliver v. Loye, 59 Miss. 320; Tillotson v. Prichard, 60 Vt. 94; Coleman v. Lyman, 42 Ind. 289.
As to tbe first case mentioned, it is sufficient to say that tbe ease there brought was a proceeding in equity, which was never hampered by the character of the action involved; and the court in the discussion of that phase of the ease, on page 323, used this language: “But apart from all this, which is conclusive of the case, this is not an action at law, but a suit in equity, which never was hampered by distinctions of local and transitory causes of action, as were courts of law.” Nor can that case be claimed as authority supporting the position contended for by appellant, for the reason that the Mississippi statute under consideration must have been quite different in its provisions from ours. While the statute is not set out in the opinion, yet I judge it must differ’materially from ours, for the reason that in the discussion of that case the court used this language: “The only local actions under our statute are ejectment and actions of trespass for injuries to land. They must be brought in the county in which the land lies. All other actions must be brought with reference to the person of the defendant. The common law distinction of local and transitory actions does not exist here. The statute alone governs, and we. cannot disregard it, and, because under the common law no remedy could be had by the assignee of a covenantee in a covenant of warranty of title of land lying in another state, deny a remedy in the courts of this State, which does not treat such an action as a local one. The courts which have held such an action not maintainable have done so under stress of the common law, which they felt so bound them as to constrain them to do what reason revolted at. Happily, we are freed from the constraint of this absurd *40rule, and look to our statutes to see what actions may be maintained by our courts.” That language shows the Legislature had' by statute abolished all local actions in that state except actions in ejectment and actions of trespass for injuries to lands, but no such statute exists in this State.
And what has been said of the Mississippi case as to the statute applies also to the Vermont case. In the latter neither the statute nor its substance is stated, but the court in passing upon the question, at page 106, said: “But it is enough to say that the common law as to certain actions, including the one at bar, being local, has been superseded by our statute regulating the places in which actions shall be brought, and none are local unless made so by statute.” That language of the court shows clearly that all common law local actions have been abolished by the Vermont statute, and that said state has no local actions except where they are made so by legislation.
In the Indiana case, the court set out the substance of the statute in the following language: “First. For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property. Second. For the partition of real property. Third. For the foreclosure of a mortgage of real property. The next section relates to actions which must be commenced in the county where the cause or some part thereof arose. Section thirty relates to actions against a corporation, company, etc., having an office or agency in any county for the transaction of business, in which case any action growing out of the business of such office may be brought in such county. Section thirty-one relates to the place where an action to establish or set aside a will must be brought. Section thirty-two relates to the venue of actions against railroad, or canal corporations, or companies, or the owner of a line of stages or coaches, etc. Section thir*41ty-three provides, that in all other cases, the action shall he commenced in the county where the defendants or one of them has his usual place of residence.” In its construction of the statute, the court, on page 291, disposed of the matter in the following language: “If it can he insisted, with any show of reason, that any of these sections required the action in question to he brought in the county where the lands are situated, it must be the first which we have quoted, and the first division of that section. But we think that section does not make the action in such case local. This was not an action ‘for the recovery of real property, or of an estate or interest therein;’ nor do we think it was an action ‘for the determination in any form of such right or interest,’ within the contemplation of that section. Hence we are of the opinion that the objection made to the jurisdiction of the court is not well founded.”
By reading that language it will be observed that, the court took it for granted that the common-law rule regarding the place for bringing such actions was not in force in that state, and the question before the court was whether or not said statute required suits of this character to be brought in the county in which the real estate was located; and the court, in my opinion, properly decided that-question in the negative. It does not appear from the opinion whether or not the common-law rule had ever been in force in that state; but it must necessarily follow from what was said by the-court that the rule, if it ever was in force in that state, had been abrogated prior to the enactment of the statute then under consideration, for the reason that if it was then in force, the holding of the court, that said section did not require the action to be brought in the county where the land was situated, would be meaningless. In other words, the question there before the court was not that said statute had abolished the common-law rule, but was, did that statute require *42such, actions to be brought in the county where the land was located. Clearly that ease is not in point here.
We must, therefore, hold that the courts of this State have no jurisdiction over the subject-matter of this action.
This view of the case renders it unnecessary to ■ pass upon the other questions presented by the record; and, finding no error therein detrimental to the rights of appellant, the judgment should he affirmed. Burgess, J., concurs.