PINCOMBE vs. RUDGE. 11 Johns. 122, Vanderkarr v. Van [4 d] Id. 376, Sedgwick v. Hollenback. of Sprague v. Baker, 17 Mass. 586, it was held that where a mortgagor The covenants of seizin in fee and of good right to convey, are sometimes considered as synonymous, but they are not universally so. Thus upon a conveyance by a man and his wife, of the wife's estate, the husband covenanted that they had good right to convey, and the wife was under age; this covenant was adjudged to be broken, though they were seized in fee. On the other hand a man having merely a power to appoint an estate, cannot be said to be seized in fee, though he has a [4 e] right to convey. Sugd. Vend. & Purch. 404. 406. Generally, however, if a man be seized in fee, he has good right to convey. The covenants of seizin in fee and of good right to convey, when the grantor has no right, are broken immediately on the execution of the deed containing them; but if the grantor be in fact seized, though it be by his own disseizin, or under a former disseizor, or by a defeasible title, or there be an outstanding mortgage, or attachment, or judgment binding the land, these covenants are not broken. The exclusive possession of the grantor, claiming the same in fee simple, is sufficient to satisfy these covenants. 2 Mass. 433, Marston v. Hobbs. 4 Mass. 108, Caswell v. Wendell. Id. 627, Prescott v. Trueman. Id. 441, Twambley v. Henley. Id. 408, Bearce v. Jackson. 2 Johns. 1, Greenby v. Wilcocks. 4 Johns. 72, Hamilton v. Wilson. 7 Johns. 376, Sedgwick v. Hollenback. 14 Johns. 248, Abbot v. Allen. 16 Johns. 254, Stannard v. Eldridge. It is not a breach of these covenants that the land conveyed contains a less number of acres than it is described as containing in the deed; 2 Johns. 37, Mann v. Pearson; but if the grantor is not seized in fee of the whole land conveyed, but other persons are seized of an undivided part, the covenant of seizin is broken. 7 Johns. 376, Sedgwick v. Hollenback. In an action for a breach of this covenant, the rights of the parties must be determined according to the existence and extent of those rights when the action was commenced, and the vendor cannot shelter himself under a title acquired subsequently to bringing the action. 7 Johns. 49, Morris v. Phelps. It is no breach of these covenants that part of the land was a public highway and was used as such; a public highway being a mere easement, and the seizin and right to convey still continues in the owner of the land over which the way is laid out. 15 Johns. 483, Whitbeck v. Cook. The covenant against incumbrances is broken by any subsisting incumbrance, without an eviction or any actual disturbance of the possession. Every right to, or interest in the land granted, to the diminution of the value of the land, but consistent with the passing of the fee of it by the conveyance, will be deemed in law an incumbrance. Thus a paramount title in a third person, or a public or town way over, or easement of any kind in the land conveyed, or a mortgage or right of dower, or outstanding judgment or attachment binding the land, is an incumbrance within the meaning of this covenant. 4 Mass. 627, Prescott v. Trueman. 2 Mass. 97, Kellog v. Ingersoll. 13 Johns. 105, Hall v. Dean. 14 Mass. 143, Barrett v. Porter. 2 Wheat. 46, Duvall v. Craig. So a quit-rent incident to the tenure of the land is an incumbrance. Com. R. 180, Hammond v. Hill. A covenant by a grantor to make such further and other reasonable assurances &c., as by the grantee or his counsel shall be reasonably devised &c., is not broken until the grantee or his counsel shall have devised the further assurance and given notice of it to the grantor, specifying the particular kind of assurance; or tendered the assurance to the grantor and allowed him a reasonable time to consider of it before bringing his suit; and such assurance must be reasonably devised, and not differing from the nature and purport of the original bargain. 9 Johns. 336, Miller v. Parsons. Cro. El. 9, Bennet's case. But in the case last cited it is said by Anderson C. J. that if the covenant be to make such assurance as the grantee's counsel shall devise, and the grantee himself devise it, the grantor is not bound to execute it, and that, in such case, concilium non dedit advisamentum is a good plea.' The same doctrine is also held in Roswell's case, 5 Co. R. 20; though the contrary doctrine seems to have been afterwards held in the case of Clifton v. Gybbon. Cro. El. 465. If the grantor covenant to give such assurance as J. S. shall devise, he must take notice of the assur ance devised at his peril; because a certain person is appointed to do it; but if it be such assurance as the grantee's counsel shall devise, the grantee must give notice, because the grantor cannot take notice who is the grantee's counsel. Per. Anderson C. J. Cro. El. 97, Cole's case. If the covenant be to make such assurance as the counsel of the grantee shall advise, it is sufficient if the counsel give notice to the grantee, and the grantee to the grantor; secus if the words were such assurance as the counsel of the grantee shall advise the grantor.' Cro. El. 298, Stafford v. Bottorne. A covenant to do all lawful and reasonable acts &c., for the further assurance &c., includes levying a fine, if that be necessary, though not named, and the satisfying of judgments and removal of other incumbrances. 5 Taunt. 418, King v. Jones. See further as to covenants for further assurance, Com. Dig. Condition, (H.) Covenants contained in a deed transferring real estate, and intended for the benefit of the covenantee as owner of the estate, either by fortifying or securing his title, or securing a compensation if the title prove defective or the estate incumbered, are said to be annexed to the estate, and they pass with it to the assignees or heirs of the covenantee. If such covenant be broken after assignment, the assignee of the estate may maintain an action in his own name for such breach. Covenants of this kind are muniments which fortify and defend the property about which they are conversant. Being made with the owner of the land as such, any one sustaining that character and claiming through the covenantee, is entitled to the benefit of them. Accordingly a second, third, &c., vendee of the land may sue for a breach of them, though assigns were not named in the deed. Co. Lit. 385. a. Com. Dig. Covenant. B. (3.) The general rule upon this subject is, that if the land to which the covenants are annexed is assigned before the covenants are broken, the assignee only can maintain an action to recover damages for such breach; but if the assignor is bound to indemnify the assignee against such breach, then the assignor may maintain such action. 14 Johns. 89, Kane v. Sanger. 2 Mass. 455, Bickford v. Page. 7 Mass. 444, Niles v. Sawtell. But if the covenants are broken before the assignment, the action must be brought by the original covenantee alone. 12 Mass. 304, Wyman v. Ballard. Cro. El. 863, Lewis v. Ridge. Upon this principle it has been held, in New York and Massachusetts, that for a breach of the covenants of seizin and of right to convey, which are broken, if at all, at the instant when made, no action can be maintained by the assignee of the grantee against the grantor. In the case of Bickford v. Page, 2 Mass. 455, the action was brought, upon a covenant of right to convey, by the original grantee against his grantor, after an assignment by the grantee to a third person. The court ruled that the action was well brought; that the covenant, having been broken immediately on the execution of the original deed and before the assignment, was then a mere chose in action not assignable; and that it could not pass by the assignment, because, no estate passing to the plaintiff by the defendant's deed, there was no land to which the covenant could be annexed, so as to pass to the assignee. The action of Greenby v. Wilcocks, 2 Johns. 1, was brought by the assignee of the grantee against the grantor, on the covenant of seizin; and the court ruled that this covenant, being broken the instant it was made, could not be distinguished from an ordinary chose in action which is incapable of assignment; that as there was no land of which the grantor was seized, the covenant was a naked one, uncoupled with a right to the soil; and therefore that the action could not be maintained. So in the case of Hamilton v. Wilson, 4 Johns. 72, which was brought by the heir of the grantee against the grantor on a covenant of seizin, the court held that the right of action did not descend to the heir, because no estate passed by the deed to the ancestor, and so none could descend to the heir; that [4ƒ] [4 g] the right of the ancestor was a mere right of action for a breach of the covenant in his life time, which, upon his death, belonged exclusively to his personal representatives. See also 2 Lev. 26, Lucy v. Levington. Cro. Eliz. 863, Lewis v. Ridge. 4 B. & P. 158, Andrew v. Pearce. But according to some recent decisions, a different doctrine seems now to prevail in England. Thus where the executrix of the grantee brought an action of covenant broken against the grantor on the covenant of seizin, it was decided that the action could not be maintained without showing some special damage to the testator in his life time; but that the right to sue on such a covenant devolved, with the estate, to the heir, or passed with it to the assignee. 1 M. & S. 355, Kingdon v. Nottle. Accordingly an action was afterwards brought by the devisee upon the same covenant, and the conrt held that such covenant runs with the land; that though broken in the life time of the testator, it is also a continuing breach in the time of the devisee, and that the action was well brought. 4 M. & S. 53, Kingdon v. Nottle. Though the covenant against incumbrances may also be broken at the time when it is made, yet, as the estate passes, the covenant is annexed to it and passes with it to the assignee. The breach, therefore, is a continuing breach, and the assignee may sue, if the original grantee has not, and if the incumbrance was not removed in his time. The grantee or assignee is not bound to wait until he is evicted, but may satisfy the incumbrance, and then resort to his action on the covenant. 17 Mass. 586, Sprague v. Baker. 7 Johns. 358, Delavergne v. Norris. 16 Johns. 254, Stannard v. Eldridge. So the covenants for further assurance, for quiet enjoyment, and of warranty pass with the land, and the heir or assignee may sue for a breach of them in his own time, or for a prior breach if the damages do not accrue until his time. Thus upon a covenant with the grantee, his heirs and assigns for further assurance on request, and a request made by the grantee, in his lifetime, to levy a fine, which the grantor neglected to do; the grantee not being evicted in his life time, but the heir being evicted afterwards, the heir may maintain the action upon this request of his ancestor and refusal of the grantor, though the breach occurred in the ancestor's lifetime; because the ultimate damage did not accrue in the ancestor's time. 5 Taunt. 418, King v. Jones. See also Sprague v. Baker, 17 Mass. 506, &c. Com. Dig. Covenant. B. 2. 3. 4 M. & S. 53, Kingdon v. Nottle. In assigning the breaches in actions of covenant broken, the general rule is that the breaches may be assigned by negativing the words of the covenant; but when such general assignment does not necessarily amount to a breach, then the breach must be specially assigned. Therefore in an action on the covenants of seizin and of right to convey, it is sufficient to allege the breach by negativing the words of the covenants. 9 Co. 60, Bradshaw's case. Cro. Jac. 304. S. C. 2 Show. 460, Lancashire v. Glover. 2 Saund. 181 b. n. (10.) Cro. Jac. 369, Muscat v. Ballet. T. Raym. 14, Glinister v. Audley. 4 Cranch. 421, Pollard v. Dwight. 2 Mass. 433, Marston v. Hobbs. 2 Johns. 1, Greenby v. Wilcocks. 7 Johns. 376, Sedgwick v. Hollenback. 4 Dall. 436, Bender v. Fromberger. 14 Johns. 248, Abbot v. Allen. But on the covenants for quiet enjoyment, for further assurance, against incumbrances, and of warranty, the particulars of the breach relied upon must be specially alleged, because the grantor does not covenant against all possible incumbrances, interruptions, disturbances, or claims and ousters whatsoever. 8 Co. 89, Fraunces' case. 2 Mass. 437, Marston v. Hobbs. 4 Mass. 628, Prescott v. Trueman. 7 Johns. 376, Sedgwick v. Hollenback. Com. R. 228, Anon. 3 Chit. 331. Thus in an action on the covenant of warranty, or for quiet enjoyment, the plaintiff must state, in some special manner, an eviction or disturbance of the possession of the plaintiff, and if the eviction or disturbance was by a stranger, that the person evicting had a lawful right before or at the time of the grant. 2 Saund. 181. n. (10.) 3 Johns. 471, Waldron v. M'Carty. Post. 12, Holden v. Taylor. 4 T. R. 617, Foster v. Pierson. 8 T. R. 281, Hodgson v. E. I. Company. 2 Johns. 1, Greenby v. Wilcocks. 2 Johns. 395, Folliard v. Wallace. 7 Johns. 258, Kent v. Welch. 2 Mass. 433, Marston v. Hobbs. 11 Johns. 122, Vanderkarr v. Vanderkarr. 4 Mass. 410, Bearce v. Jackson. 4 Mass. 441, Twambly v. Henley. Id. 631, Prescott v. Trueman. Cro. Jac. 425, Broking v. Charn. Id. 315, Kirby v. Hansaker. Cro. El. 914, Chantflower v. Priestly. Yelv. 30. S. C. 3 T. R. 584, Dudley v. Folliat. 15 Johns. 483, Whitbeck v. Cook. 7 Johns. 380, Sedgwick v. Hollenback. 5 Johns. 120, Kortz v. Carpenter. 1 Mass. 464, Emerson v. Minot. Com. R. 228, Anon. 1 Show. 70, Skinner v. Kilbys. 2 B. & P. 14. n. (a.) Cowp. 243, Hunt v. Cope. So a covenant to indemnify against all demands and damages whatsoever which may happen or arise on account of a certain mortgage, is tantamount to a covenant for quiet enjoyment against the mortgage, and the plaintiff must allege an eviction under the mortgage. 8 Johns. 198, Van Slyck v. Kimball. But it is not necessary to allege that the eviction was by legal process. 4 T. R. 617, Foster v. Pierson. 2 Saund 181. b. n. (10.) 4 Mass. 349, Hamilton v. Cutts. Nor is it necessary to set out specially the title of the person evicting the plaintiff because he is a stranger to it. 4 T. R. 617, Foster v. Pierson. 8 T. R. 278, Hodgson v. E. I. Company. 2 Saund. 181 b. n. (10.) 3 Chitt. 334. n. (a.) 336. n. (a.) And where the covenant is particular, as against interruption by the grantor, or by any person expressly named, it is not necessary, upon an eviction by the person named, to aver any title whatever in the party evicting. 1T. R. 671, Lloyd v. Tomkies. 1 Str. 400, Perry v. Edwards. Cro. Jac. 383, Penning v. Platt. Cro. El. 544, Corus V. —. 2 Show. 425, Crosse v. Young. 2 Saund. 181 b. n. (10) 5 M. & S. 374, Nash v. Palmer. But still some particular act must be shown, by which the plaintiff is interrupted; otherwise the breach is not well assigned. Com. R. 228. Anon. 8 Co. 91. b. Fraunces' case. 2 Saund. 181. n. (10.) In an action on the covenant against incumbrances, the particular incumbrance relied upon must be specially set forth in assigning the breach; but it is not necessary to allege an eviction or ouster, or any actual disturbance. 4 Mass. 627, Prescott v. Trueman. 2 Mass. 87, Kellog v. Ingersoll. 6 Mass. 246, Ellis v. Welch. 2 Wheat. 45, Duvall v. Craig. 7 Johns. 358, Delavergne v. Norris. 16 Johns. 254, Stannard v. Eldridge. 3 East 491, Howes v. Brushfield. If the grantee of the land assign with warranty, or if the nature of the assignment be such that the assignor is bound to indemnify the assignee against the breach of the covenants of the grantor, the assignor may sue on covenants running with the land, though the breach was subsequent to the assignment; secus, if he assign by a quit-claim deed merely. 14 Johns. 89, Kane v. Sanger. 2 Mass. 465, Bickford v. Page. In a suit by the assignor, in such case, he must aver, in his declaration, that he is answerable to the assignee on account of the eviction or other breach assigned. 7 Mass. 44, Niles v. Sawtell. This rule is founded on the principle that no damages can be recovered by a person who can have sustained no damages. In assigning a breach of the covenant for further assurance the plaintiff must set forth specially the performance, on his part, of all things necessary to entitle him to recover. Thus in Miller v. Parsons, 9 Johns. 336, the declaration was upon a covenant for further assurance &c., and [4h] |