dissenting:
I dissent from the judgment of the majority of the Court in this action which erroneously holds that the allegations in the amended complaint of the plaintiff that in an action instituted by him to quiet title the Court had adjudged that two named individuals, who are not parties to the deed to the plaintiff, had lawful title to the real estate in question as against the plaintiff was a sufficient allegation that the plaintiff had been constructively evicted from the real estate conveyed to the plaintiff by the defendant Taylor E. Himes and his wife.
It is well established in this jurisdiction, and the majority correctly holds, that a covenant of general warranty of title is not broken until there is an ouster or eviction of the vendee from the property, or equivalent disturbance, by paramount title. Point 2, syllabus, McKinley Land Company v. Maynor, 76 W.Va. 156, 85 S.E. 79. See also Rex v. Creel, 22 W.Va. 373.
It clearly appears from the record that when the 145 acres of land involved in this case were conveyed to the plaintiff James H. Brewster, Jr., by the defendant Taylor E. Hines and Celia A. Hines, his wife, by deed dated July 15, 1960, no person was in actual possession and that the plaintiff entered into possession of the land under the deed, paid the purchase price of $8,000.00 and spent $2,390.10 in preparing to cut and sell the timber on the property. While the plaintiff was in possession of the land he learned that there was some question concerning the validity of his title to the land and, after having received a report of an examination of the title by an attorney employed by him for that purpose, that Mary R. Holway and Edward J. Holway, Jr., residents of the State of Ohio, were the holders of fee simple title to the land, the plaintiff voluntarily terminated his possession of it and, as it *317appears without dispute, the plaintiff has never been dispossessed of the land or any part of it and his possession has never been disturbed by any person.
As heretofore stated, a covenant of general warranty is not broken until there is an eviction, actual or constructive, or as long as the enjoyment of the property is not disturbed. In the McKinley Land Company case the opinion contains this language: “The mere existence of an outstanding paramount title will not authorize a recovery on the warranty. In substance and effect the covenant is a guaranty against an actual eviction, or a constructive eviction by possession of another under paramount title.” The paramount title of the Holways to the land does not constitute an eviction, either actual or constructive, and does not justify a recovery on the warranty. Since the plaintiff ceased to possess the property there has been no actual possession of it by anyone.
The institution of an action by the plaintiff against the Holways, who hold the paramount title, to litigate the title to the land and the allegations in the answer of the Hol-ways that' they are the owners of an estate in fee simple absolute in the land, that the deed from Hines and his wife to the plaintiff constitutes a cloud on the title of the Hol-ways, without any showing that they have disturbed or intended to disturb the possession of the plaintiff or to obtain possession of the land clearly does not constitute, as the majority erroneously holds, a constructive eviction.
It is significant that the action to litigate the title was voluntarily instituted by the plaintiff and not by the Holways who, other than filing an answer containing the foregoing allegations, have done nothing to obtain possession of the land. Section 2, Article 4, Chapter 36, Code, 1931, provides that a covenant of general warranty by a grantor in a deed shall have the same effect as if the grantor had covenanted that he, his heirs, personal representatives and assigns, will forever warrant and defend the property unto the grantee, his heirs, personal representatives and assigns, against the claims and demands of all persons whomsoever. Until the plaintiff voluntarily *318instituted the action against the Holways, instead of the Holways instituting an action against the plaintiff to obtain possession of the land, the plaintiff has not been required to defend his title. Moreover, the allegation that the court had adjudicated in the action instituted by the plaintiff, that two named individuals, not parties to the deed, had lawful title to the real estate, simply alleges re-affirmance of the defective title or lack of title of the plaintiff to the real estate, which existed before the plaintiff instituted the action against the Holways. The adjudication effected no legal change with respect to the absence of any constructive eviction of the plaintiff.
5 M.J., Covenants, Section 31, states that “The mere existence of an outstanding paramount title will not authorize a recovery on a general warranty of title.” 20 Am. Jur. 2d, Covenants, Conditions, and Restrictions, Section 58, contains this language: “The mere existence of a paramount title which has never been asserted generally does not amount to a constructive eviction which will support an action for breach of a general covenant of warranty. Or, as the rule is sometimes stated, there can be no recovery in an action for breach of the covenant if the paramount title has not been hostilely asserted. The mere existence of the paramount title will not ordinarily justify an abandonment of the property by the covenantee and suit by him on his covenants.” See also Annotation III a., 172 A.L.R., page 28.
In Shuford v. Phillips, 235 N.C. 387, 70 S.E.2d 193, the court said that the mere existence of a better title without possession and without ouster or disturbance of the possession of the plaintiff does not constitute a breach of warranty, but the breach arises upon ouster or disturbance of possession by virtue of a superior title outstanding at the time the covenant was made.
There was no ouster or disturbance of the possession of the plaintiff in this action at the time of the execution and delivery of the deed from the Hineses, and there has been no ouster or disturbance of the plaintiff at any time since *319the execution and delivery of the deed. If the plaintiff in the action instituted by him against the Holways, is required to defend his title against their claim, he has voluntarily brought that requirement upon himself and the plaintiff’s invitation to the Holways to require 'him to defend does not constitute a constructive eviction which operates as a breach of the covenant of general warranty in his deed.
The labored efforts of the majority to establish, under the allegations and the facts disclosed by the record, a constructive eviction in the conceded absence of an actual eviction evidently gives recognition to the saying that “hard cases make bad law”, as, in my opinion, does the decision of the majority in this case.
Though in my judgment the plaintiff, because he has not been evicted from the land, either actually or constructively, can not maintain this action for breach of the covenant of general warranty, he is not without adequate relief. As the plaintiff did not receive a good title by the deed made to him by the Hineses, there appears to be a total failure of consideration, and in that situation the plaintiff should have sought rescission of the deed and a recovery of the purchase price in an action for that purpose. In Echard v. Waggoner, 126 Va. 238, 101 S.E. 245, the court held that a deed for real estate would be rescinded in a suit in equity for failure of consideration. See also Tysor v. Adams, 116 Va. 239, 81 S.E. 76; Martin v. Hall, 115 Va. 358, 79 S.E. 320; Lowman v. Crawford, 99 Va. 688, 40 S.E. 17.
As there has been no eviction either actual or constructive of the plaintiff from the land in question or disturbance of his possession by a judicial determination or otherwise, I would affirm the judgment of the Circuit Court.