8 N.C. 410 | N.C. | 1821
This action is founded upon a covenant of general warranty, which is subject to the same construction with a covenant for quiet enjoyment; and it is essential in this action that the plaintiff assign as a breach an ouster or eviction by a paramount legal title. It is stated in the declaration that Nance and Thompson, tenants in possession under the plaintiff, were legally ejected; and the case more particularly specifies that the plaintiff had conveyed the land to those persons who defended the ejectment on the strength of his title. Two objections are made to the plaintiff's recovery; the first, that the deed from the defendant contained no covenant for warranty or quiet enjoyment to the plaintiff; second, that if it did the plaintiff could not recover until Nance and Thompson had recovered from him. The premises of the deed declare that the defendant has sold to the plaintiff a fee simple estate, and the habendum limits the said estate to the plaintiff, his heirs, executors, administrators and assigns forever; but the clause of warranty does not express to whom it shall enure. The ordinary rules of construction would seem sufficient to remove this difficulty, as it is the nature of a warranty to run with the estate; but Coke (412) states the case, "though in the clause of the warranty it be not mentioned to whom, etc., yet shall it be intended to the feoffee." Co. Litt., 384. The objection, therefore, cannot prevail. There is nothing conclusive in the recovery of the land by ejectment as against the defendant. He was still at liberty to controvert the title of Carson and the other plaintiff in the *216 ejectment, and show if he could that their title was not superior to the one he sold. It cannot make any difference to him, therefore, whether Herrin chooses to stand a suit or not. The only consequence would be an increase of costs, which he must ultimately pay. The plaintiff had a clear right to pay the money as soon as the eviction by a better title was ascertained to his satisfaction, and to bring this suit immediately afterwards. A new trial is refused on both grounds.
Cited: Lee v. Gause,