*644Adams, J.
Tbe United States acquired its title on 15 March, 1869. In February, 1905, McAden and his cotenants executed their deed to the Covers, and on 1Y May, 1906, the Covers made a conveyance t'o the Hiawassee Lumber Company, reserving certain timber and minerals, with right of entry for purposes designated in the deed. On 19 August, 1910, the United States brought suit against the Hiawassee Lumber Company in the District Court for the Western District of North Carolina, and at the March Term, 1919, recovered a final judgment declaring the plaintiff in that action to be the owner of the land in controversy. In answer to the fourth issue his Honor concluded that the District Court had adjudged the United States to be the owner of 2,632 acres of the land embraced in the deed executed to the Covers by McAden and his ■ cotenants. This land was included, also', in the deed from the Covers to the Hiawassee Lumber Company. After rendition of the final judgment in the District Court, the plaintiffs refunded to the Hiawassee Lumber Company the consideration received by them and their predecessors, with interest from the date of payment, and on 16 December, 1919, instituted the present action to recover of the defendants the sum of $5,922, the amount refunded, with interest thereon from 1 March, 1905, as damages for the defendants’ alleged breach of warranty. Among other defenses, the defendants pleaded the statute of limitations in bar of the plaintiffs’ recovery, and this plea necessarily involves the preliminary question whether the plaintiffs’ alleged cause of action is defeated by lapse of time.
In view of the plaintiffs’ contention, it may be advisable to note the distinction between a covenant of seizin and a covenant of warranty. The former is a covenant in prcesenti, or a covenant that a particular state of things exists when the deed is delivered — juris et seisince coiy-junctio — and if it does not exist the delivery of the deed containing such a covenant causes an instant breach. A covenant of warranty is prospective. It is an agreement or assurance by the grantor -of an estate that the grantee and bis heirs and assigns shall enjoy it without interruption by virtue of a paramount title, or that they shall not by force of a paramount title be evicted from the land or deprived of its possession. Rawle on Covenants, sec. 205; Burdick on Real Prop., sec. 301; Wiggins v. Pender, 132 N. C., 634. This distinction is further observable in the conditions or circumstances that usually characterize the breach of each covenant. If the grantor is not seized, or if an encumbrance exists, the covenant of seizin is broken immediately upon the execution of the deed; but generally speaking, a covenant of warranty, being prospective in its nature, is broken only by eviction, actual or constructive, under a paramount title existing at the time the conveyance is made. Burdick, supra, 814; Wiggins v. Pender, supra; Price v. Deal, 90 N. C., 290; Coble v. *645Wellborn, 13 N. C., 388; Britton v. Ruffin, 123 N. C., 67; Griffin v. Thomas, 128 N. C., 310; Cedar Works v. Lumber Co., 161 N. C., 614.
We must, therefore, inquire whether at the time the plaintiffs and the defendants executed their respective deeds there was a paramount title in the United States, and if so, whether the Hiawassee Lumber Company, after vouching in the plaintiffs/was actually or constructively evicted from any part of the purchased premises by virtue of such title. Although there is no contention that the judgment of the District Court does not conclude the Hiawassee Lumber Company, it is necessary to decide whether it likewise concludes the plaintiffs. The answer depends in part on the question of notice and the relation existing between the plaintiffs and the Hiawassee Lumber Company at the time the judgment was rendered. At common law the lord, when vouched in or notified, was required to appear and protect his vassal in the enjoyment of his fief, and, failing to do so, to give to the vassal another fief of equal value. If the warrantor had no lands or tenements, and if there was neither voucher nor writ of warrantia chartce (warranty of deed or title), there could be no recovery in value; but in the modern law a covenant of warranty is treated as an agreement of the warrantor to make good by compensation in money any loss directly caused by failure of the title which his deed purports to convey. It is not always essential to the grantee’s right o.f action on the covenant that he should give his cove-nantor notice to come in and defend the title. But if no notice is given, the covenantee, in his suit against the covenantor for breach of warranty, does not make out a prima facie case by showing judgment and eviction; he must show, in addition, that he was evicted under a paramount title, unless the covenantor was a party to the suit that brought about the eviction. 15 C. J., 1265, sec. 97. In -Jones v. Balsley, 154 N. C., 68, Walker, J., approved the doctrine stated in Carroll v. Nodine, 41 Oregon, 412, to this effect: “Before an indemnitor can be expected to defend, he must have reasonable notice of the pendency of the suit or action by which he is to be bound, and afforded an opportunity to participate in or interpose such defense as he may desire; and it is only by complying with such conditions that the party to be indemnified can estop the indemnitor to controvert the matter anew in an action against him upon the indemnity contract or obligation.” True, in Martin v. Cowles, 19 N. C., 101, approved in Wilder v. Ireland, 53 N. C., 85, it was held that a judgment in ejectment against the vendee is no evidence of a defect in the title of the vendor, when the latter is sued upon his covenant by the former; but Justice Walker observed that these cases were decided under the system of pleading, practice, and procedure prevailing at common law, when the ejectment suit was regarded with respect to the covenantor as res inter alios acta, and he could not for that reason *646become a party to it. Tbe learned justice remarks, also, that tbe great weight of authority in England and in this country is to tbe effect that it is sufficient to conclude tbe vendor by tbe judgment if be is made constructively a party by substantial notice to come in and defend bis title, and that it is not necessary that be be actually a party to tbe suit. Jones v. Balsley, supra, 69. Answering tbe third issue, bis Honor found as a fact that both tbe plaintiffs and tbe defendants bad been'given due notice of tbe action prosecuted by tbe United States against tbe Hiawassee Lumber Company and an opportunity to defend tbe title, and that they were bound by tbe judgment in that action. We bold, therefore, that the plaintiffs have shown, for tbe present purpose, an outstanding paramount title to tbe lands recovered against tbe Hiawassee Lumber Company in tbe District Court.
We are next concerned with tbe question whether tbe plaintiffs have shown an eviction under this title. In Shankle v. Ingram, 133 N. C., 255, tbe plaintiff alleged that tbe defendant bad conveyed to him 245 acres of land, with covenants of warranty; that tbe defendant bad previously conveyed 41.8 acres of this land to Jesse Reynolds; that Reynolds was in possession of bis tract, bolding adversely at tbe time tbe plaintiff acquired bis deed. Upon plaintiff’s suit for breach of warranty, it was said that since Reynolds held adverse possession under a good title at tbe time tbe plaintiff received bis deed, such adverse possession was equivalent to an ouster. If tbe plaintiff bad entered upon tbe possession of Reynolds be would have committed a trespass; and in Coble v. Wellborn, supra, Ruffin, J., said: “No man is compelled to be a trespasser, and, therefore, when it has been judicially ascertained that another is in better title, it follows that be is kept out; which is equal to being turned out.” Grist v. Hodges, 14 N. C., 200; Wiggins v. Pender, supra. Tbe immediate question, then, is this: At tbe date of tbe deed executed by tbe plaintiffs to tbe Hiawassee Lumber Company, were tbe circumstances under which tbe United States held title tantamount to a constructive eviction of tbe plaintiffs’ grantee? In effect, tbe final judgment of tbe District Court was an adjudication that tbe United States acquired its title under tbe Stevens deed before tbe execution of tbe McAden deed or plaintiffs’ conveyance to tbe Hiawassee Lumber Company. It is admitted that none of tbe grantors or grantees in tbe deed from tbe McAdens to tbe Covers ever bad actual possession of tbe land therein described, and that tbe Hiawassee Lumber Company never bad actual- possession of tbe land embraced in its deed from tbe Covers. Nor was tbe United States in tbe actual occupation. Ordinarily tbe mere existence of an outstanding paramount title to land will not authorize a recovery by tbe grantee in an action for breach of tbe covenant. There must be an eviction, actual or constructive, • but not *647necessarily under legal process. 15 C. J., 1288, sec. 157 (b); Coble v. Wellborn, supra; Price v. Deal, supra; Hodges v. Latham, 98 N. C., 240; Britton v. Ruffin, supra; Ravenal v. Ingram, 131 N. C., 549. In other words, to warrant recovery there must be some hostile assertion of the adverse title, unless the superior title is in the State. 15 C. J., 1288, sec. 157. But the authorities hold that where the paramount title is in the State or the United States it is not essential to a constructive eviction that such title be formally asserted. “A grantee by a warranty deed executed by a private person to lands owned by the United States cannot take possession without becoming a wrongdoer, and is not required to take or attempt to take possession, and his right of action accrues immediately to recover for a breach of warranty not dependent on eviction or any future event.” 7 R. O. L., 1151, sec. 63. In Crawford County Bank v. Baker (Ark.), 130 S. W. R., 557, McCulloch, C. J., said: “It is well settled in this State and elsewhere that when the title to land is in the State or the United States, that of itself is such a hostile assertion of the paramount title as will amount to a constructive eviction, sufficient to authorize a purchaser to maintain an action against his vendor for breach of the covenants of warranty.” Seldon v. Dudley Jones Co., 85 S. W. R., 778; Dillahunty v. Ry., 59 Ark., 629; Rawle on Covenants, sec. 140; 2 Tiffany on Real Property, 1701 (n) ; Compiled Sts., sec. 4980. In Pevey v. Jones, 71 Miss., 647, Campbell, C. J., discussing the question, said: “As to the land belonging to the United .States, the covenant of warranty was broken the instant it was made, and a right of action on it then accrued, and was barred when this action was commenced. The true doctrine is that the United States are always seized of their lands, and cannot be disseized as private owner's may be; that land belonging to the United States cannot lawfully be the subject of sale and conveyance by individuals, so as to -confer any right; that a grantee of such land by another than the United States cannot take possession without becoming a wrongdoer, and liable to summary ejection; and, therefore, that a covenant of warranty, in a conveyance of land belonging to the United States, must be viewed differently from one where the ownership is by a private person; that the grantee is not required to take possession, or to attempt to get it, and that a right of action immediately accrues to recover for a breach of the warranty, not dependent on any future event, but fixed by the fact of ownership of the land by the Government. In this case the grantee acquired nothing whatever as to the land owned by the United States; and, by virtue of the transaction, his vendor, on receipt of the purchase money, thereby at once became liable to him for money received to his use. We are not aware of any direct authority for this view, but it seems to result necessarily from what is well settled, and we do not hesitate to make a precedent so fully supported by reason.”
*648Applying these principles, we conclude that neither the plaintiffs nor the defendants had title to the land when their respective deeds were executed, that the paramount title of the United States constituted such hostile assertion as amounted to a constructive eviction, and that the plaintiffs’ alleged cause of action accrued at the time of the ouster. Since the summons was issued on 16 December, 1919, it follows that the plaintiffs’ action is barred by the statute of limitations. C. S,, 437 (2).
In view of the decision rendered at this term in Fibre Co. v. Cozad, ante, 600, we deem it proper to remark that we are not inadvertent to the probate of the Olmsted and Stevens deeds. While the probate of these deeds may be subject to the criticism set forth in that decision, we need not consider the question here, for his Honor concluded from the evidence that the plaintiffs and the defendants were bound by the judgment of the District Court. From this finding it results that the parties to this action are precluded from contesting the validity of the probate.
The judgment of his Honor is
Affirmed.