| Miss. | Oct 15, 1876

Simrall, C. J.,

delivered the opinion of the court.

James Britton brought an action of covenant against G. W. Dyer, administrator of the estate of John H. Keith, deceased. The suit is founded on the covenant of Keith, the intestate, in a deed of bargain and sale to Edward G. Baber, to this effect, that “he (Keith) would warrant and forever defend the title in fee-simple against all lawful claims whatever.” Afterwards Baker and wife sold and conveyed the same land to Britton with like covenant.

Keith, before his conveyance to Baker, mortgaged the land to Goff, county treasurer of Panola County, to secure a note of-|2,280, payable to him as ex officio treasurer of the common-school fund of the county.

Keith having died without paying this debt, Goff, as treasurer, brought his bill in chancery against Dyer, administrator, Britton and others, to foreclose the mortgage.

A decree was rendered ordering a sale unless the money was paid. Dyer, the administrator, having failed to make the payment, the plaintiff, Britton, on the 29th of September, *2771869, paid to Goff, the treasurer, $2,470.40, the amount required to prevent a sale of the land and an eviction from it; by reason whereof the said Dyer, administrator, has broken the covenant of his intestate.

The defendant craved oyer of the deed, which was granted, and thereupon demurred to the declaration; assigning, among other causes, that the plaintiff does not show that he has ever been evicted or ousted from the land, or that he has ever surrendered possession to or been kept out of possession by an outstanding paramount legal title.

Although the point is made in the demurrer that Britton could not sue on Keith’s covenant to Baker, it has been abandoned in this court; and it was conceded at the argument, by the counsel for the defendant, that the covenant ran with the land, and passed by assignment to Britton, the plaintiff.

The covenants implied by the statute, from the use of the words “grant, bargain and sell,” that the grantor is seised of an estate free from incumbrances, and of quiet enjoyment against the grantor, his heirs and assigns, do not arise, and have no existence, if the grantor makes express warranties. These will be considered as the measure of his undertaking, and will exclude all further liability. Hoy v. Taliaferro, 8 S. & M. 727; Duncan v. Lane, 8 S. & M. 744, 753.

The decisions in this State hold that, in order to sustain an action on the covenant of general warranty, there must be either an actual eviction by judicial process, or a surrender of possession to a valid subsisting paramount legal title, asserted against the covenantee; or that there must be a holding of the grantee out of possession, by such title, so that he could not enter. Dennis v. Heath, 11 S. & M. 206, 218; Witty v. Hightower, 12 S. & M. 478, 481; Burrus v. Wilkinson, 31 Miss. 537" court="Miss." date_filed="1856-10-15" href="https://app.midpage.ai/document/burrus-v-wilkinson-8257039?utm_source=webapp" opinion_id="8257039">31 Miss. 537.

Quite thirty years have elapsed since the first of these decisions. We are now asked to overrule them, because the doctrine which they announce is not in harmony with the current of American law, and is not supported by sound reason. There is great force in the suggestion. If the question were res integra, we should adopt the reasoning and conclusions of that line of decisions, which have admitted constructive or equitable evic*278tions as of equal import with an actual ouster in certain circumstances.

We fully concede the force and justice of the argument, that if the vendee in good faith pays off a foreclosure decree, which if executed would destroy his estate and evict him from the land, he should have indemnity by suit on the covenant of the warrantor. He has done that which was necessary to protect his title and possession, perhaps, too, at less than half the cost of the property.

If we did not have in our jurisprudence a principle which is equitable and just, we should not hesitate to overturn these decisions, if they were the obstruction. But we have in the remedial machinery of our jurisprudence full, practical and adequate remedy and redress for the covenantee to reimburse him for the outlays in extinguishing such incumbrances, or in getting in the adverse paramount title. He may recover the money back in the action of assumpsit, as in Kirkpatrick v. Miller, 50 Miss. 521" court="Miss." date_filed="1874-10-15" href="https://app.midpage.ai/document/kirkpatrick-v-miller-7984455?utm_source=webapp" opinion_id="7984455">50 Miss. 521, or he may sue in chancery.

The action of assumpsit may be resorted to in every instance where money has been necessarily expended to discharge the estate from incumbrances, or to get in a title to avoid an eviction. In no state of case in this action is the covenantor liable to refund more than was actually paid by the covenantee, and never in excess of his liability on the covenant, where an actual eviction could be assigned as a breach; so that we afford to the covenantee a cheap and simple remedy at law, which administers as complete and full indemnity as that class of cases elsewhere, which recognize breaches of the covenant as constructive and technical evictions.

But in addition to this legal remedy the covenantee and vendee may bring his plaint in the Court of Chancery; and there be redressed according to the principles of equity and good conscience. The doctrine of that court is, that he must deal fairly and in fidelity to his warrantor; that while he will not be permitted to break allegiance to the title under which he entered and holds possession, yet he shall not be put to the useless expense of a fruitless litigation against an incumbrance or paramount title, which must ultimately prevail, but may, if necessary to preserve the estate and the possession, pay off *279the one and buy in the other ; and for such outlays of money he shall be reimbursed. Hardeman v. Cowan, 10 S. & M. 486, 501; Ayres v. Mitchell, 3 S. & M. 683, 694; Champlin v. Dotson, 13 S. & M. 553, 556 ; Hill v. Samuel, 31 Miss. 307" court="Miss." date_filed="1856-04-15" href="https://app.midpage.ai/document/hill-v-samuel-8257001?utm_source=webapp" opinion_id="8257001">31 Miss. 307, 311.

It must be noted, however, that the covenantee assumes the risk of judging correctly as to the character and validity of the incumbrance or title which he buys in. He must establish, as a condition precedent to recovery, either at law or in equity, that it was a paramount lien or title against which the warrantor was bound to defend him, and that he acted under a necessity to save the estate.

It will be perceived, therefore, that while we deny to the covenantee a technical action on the warranty, unless he can show an actual eviction or surrender 'to a paramount title, &c., yet the principle of law for which the defendant in error contends is as vital here as in those States which allow suit on the covenant. But it must be evoked either in the action of assumpsit or by suit in chancery.

The question under consideration has no other significance than of pleading, and the method of remedy. It is of no practical importance whether the decisions are permitted to stand, or whether they should be overruled. They do not stand in the way of justice or right. In such circumstances, we do not feel called upon to overrule them.

In the present case, the cause of action being substantially the same whether in covenant or assumpsit, on the return of the case to the Circuit Court the pleading might be reformed so as to change the form of the action. That kind of amendment is expressly allowed by statute.

We think the demurrer to the declaration ought, for the cause assigned, to have been sustained.

We reverse the judgment, sustain the demurrer to the declaration, but remand the cause to the Circuit 'Court, so that the pleading may be amended, if the- plaintiff in that court shall be so advised.