The opinion of the court was delivered by
Taft, J.
The defendant, George Prichard, conveyed the land in question to Daniel F. Tillotson and Henry Dame, by deed, containing the usual covenants, dated the 4th day of June, 1866 ; by subsequent deeds of conveyance the interest of Dame passed to Tillotson, and the latter, on the 18th day of May, 1882, conveyed the premises to the plaintiff.
I. At the time Prichard conveyed the premises to Tillotson andDame, he did not hold the legal title to them, nor did he have possession of the same, unless the payment of taxes constituted possession. The payment of taxes is not an act of possession, and is not evidence of a possessory title. Reed v. Field, 15 Vt. 672" court="Vt." date_filed="1843-03-15" href="https://app.midpage.ai/document/reed-v-field-6572779?utm_source=webapp" opinion_id="6572779">15 Vt. 672. Prichard therefore, at the time of his deed, had neither title nor possession.
II. After the conveyance of the' land by Prichard to I Tillotson and Dame, the latter entered into actual possession! of the premises, and they and their grantees in the chain of I title continued in possession until the plaintiff was evicted ini December, 1882, by Reed, Sherwood and Knight, under an elder and better title. This action is covenant, the original declaration counting upon the covenants of seisin and right to convey. The court permitted an amendment declaring upon the covenant of warranty. The defendant claims that the court had no power to permit the amendment, which is true, if it introduced a new cause of action. Was the cause of action, introduced by the amendment a new one, or a difieren! description of the cause originally declared upon ? The original declaration says that the defendant hath not -kept his *101covenants, for that be was not lawfully seized and bad not good right to sell and convey the premises, and for that-Reed and others were the lawful owners and hath evicted the plaintiff and driven him from the possession of saidland. The amended declaration adds the fact that the defendant hath not warranted the said premises and for the same reasons alleged in the original declaration. Where the original declaration counted upon the covenant against incumbrances, it was held by this court that an amendment adding a count upon the covenant of warranty was properly allowed. Boyd v. Bartlett, 36 Vt. 9" court="Vt." date_filed="1863-02-15" href="https://app.midpage.ai/document/boyd-v-bartlett-6577516?utm_source=webapp" opinion_id="6577516">36 Vt. 9. This case justified the ruling of the court below, and we think is correct in principle. The defendant insists there was error for the reason that the amendment was not permitted until after the evidence had been heard by the referee. It has been many times held that judgment should be entered upon the report of a referee, whenever, without changing the nature of the action, the declaration or pleadings could be so amended, as to accommodate them to the facts found by the referee. Rob. Dig. Tit. Reference, I, sub. div. 5, 6, and cases cited. We think under this rule the time when the declaration was amended was immaterial.
III. The plaintiff claims to recover upon the covenant of warranty only. This covenant is one of those that run with the land, and is intended for the benefit of the ultimate grantee in whose time it is broken. Williams v. Wetherbee, 1 Aik. 233" court="Vt." date_filed="1826-03-15" href="https://app.midpage.ai/document/williams-v-wetherbee-6570194?utm_source=webapp" opinion_id="6570194">1 Aik. 233. Until breach, the covenant passes with the estate by purchase and can be enforced when broken, by. the covenantee or his representatives, or, if the estate has been assigned, by the assignee of the covenantee, who claims under the. seisin vested in him. Rawle on Cov. s. 213. The covenant attached to a grant does not pass by the deed from the cove-nantee to his assignee, but only by the land conveyed. It passes not by the form of the conveyance, but merely as an incident to the land.; so when the grantee takes no estate under the grant, no assignment of the land by him can transfer it to the *102assignee. As it is not capable of a direct transfer, so as to enable tbe assignee to maintain an action for its breach in his own name, it cannot pass by the operation of the assignment, for it cannot run with the land which the grantee does not have to convey. And this doctrine, Rawle in his work on Covenants says, prevails generally throughout the United States. In 1 Smith’s Leading Cases, 183 in the notes to Spencer’s Case, 5 Coke, 16, it is stated that in England when nothing bat bare possession of the land passes by the conveyance, the covenant does not pass, either by the direct or indirect operation of the assignment. But the tendency of the American cases is to hold that possession is a sufficient estate to cause the covenant to attach to the land, and upon an assignment or transfer of the land by the covenantee to pass to the assignee. Rawle on Cov. s. 233. Possession is an estate that in time may ripen into a perfect title. The defendant’s counsel insist .that it was necessary that the covenantor, Prichard, should have had possession, that-possession in the covenantees was not sufficient to attach the covenant to the land, and that it could not be made to attach by any possession of the covenantees taken by them subsequently to the grant. The referee finds that Tillotson and Dame took actual possession of the premises under their deed from Prichard. The covenant of warranty was of force in their hands by privity of contract, and when they sold the land having taken possession of it under their deed, the covenant attached to the land and passed with it to the grantee. The first time the question whether the covenant passes, as attached to the land, can arise, is, when the covenantee assigns the estate; and if he then has possession of the land, holding it under his deed, why does not the covenant pass with the land? To so hold does no injustice to the covenantor. He is .only called upon to make good his covenant.
It is said a grantor may be liable to his grantee in an action for a breach of the covenant of seisin, and to an assignee of the grantee upon that of warranty. Concede this to be true, the court *103can properly protect the rights of the defendant in either case, by attaching such appendages to the judgment', or, staying the execution, as will prevent injustice in any event whatever ; as was done in Catlin v. Hurlburt, 3 Vt. 403" court="Vt." date_filed="1831-01-15" href="https://app.midpage.ai/document/catlin-v-hurlburt-6571312?utm_source=webapp" opinion_id="6571312">3 Vt. 403. In that case the plaintiff had conveyed the land to Lynde Catlin, and then brought his action on the covenant of seisin. The court giving judgment for the plaintiff ordered stay of execution until the plaintiff procured from Lynde Catlin and lodged with the clerk for the benefit of the defendant, either a'quit-claim deed of the premises, or a suitable discharge of the covenant of warranty contained in the defendant’s deed to the plaintiff. And see Blake v. Burnham, 29 Vt. 437" court="Vt." date_filed="1857-03-15" href="https://app.midpage.ai/document/blake-v-burnham-6576190?utm_source=webapp" opinion_id="6576190">29 Vt. 437. In case the defendant apprehends any danger from a second action, he can apply to the court, at the time of final judgment, for such orders in respect thereto, as he thinks he is entitled to. Can it be in any manner consistently claimed that the land in question with the covenant did not pass to the plaintiff by virtue of the deed from the defendant? Can he say it is not his deed? He conveyed the land, his grantees took possession of it and conveyed it to the plaintiff. And is not their possession, tortious though it may be against the lawful owner, derived from and under the deed from the grantor ? And if so, why did not the covenant pass to them with the possession? We think the covenant passed, as attached to the estate, when the grantees having taken possession under their deed conveyed the premises to the plaintiff. Rawle on Cov. s. 233; Beddoe v. Wadsworth, 21 Wend. 120" court="N.Y. Sup. Ct." date_filed="1839-05-15" href="https://app.midpage.ai/document/beddoes-v-wadsworth-5515280?utm_source=webapp" opinion_id="5515280">21 Wend. 120; Mead v. Larkin, 54 Ill. 489; Allen v. Kennedy, (Mo.) 6 West. Rep. 845; Fields v. Squires, 1 Deady, U. S. C. C. 366.
It may be well, in this connection, to refer to the precedents of the declarations in actions in this State, for the breach of the covenants of warranty. In Williams v. Wetherbee, supra, the premises had come to the plaintiff through several mesne conveyances, and after the allegation of the conveyancé to the plaintiff it is alleged “ whereby the plaintiff became seized and *104possessed of the premises,” it being nowhere alleged that the defendant or any of the prior assignees had ever been in possession of the premises. It was argued under the demurrer to the pleas that the declaration itself was defective in that it did not allege that the plaintiff entered into possession of the premises and was evicted; but the court held that the allegation “whereby he became possessed,' etc.,” was a sufficient allegation of the possession. In Beardsley v. Knight, 4 Vt. 471" court="Vt." date_filed="1832-01-15" href="https://app.midpage.ai/document/beardsley-v-knight-6571437?utm_source=webapp" opinion_id="6571437">4 Vt. 471, after setting forth the execution by the defendant of the deed containing the covenant, and the assignment of the land to the plaintiff by Hatch, the covenantee, it is alleged that Beardsley, the plaintiff, and assignee of the covenant, entered into possession of the premises, without any allegation that Beardsley the covenantor, or Hatch the covenantee, was ever in possession oí the same. In Wilder v. Davenport’s Estate, 58 Vt. 642" court="Vt." date_filed="1886-02-15" href="https://app.midpage.ai/document/wilder-v-davenports-estate-6582858?utm_source=webapp" opinion_id="6582858">58 Vt. 642, an action for the breach of the covenant of warranty in favor of an assignee of the covenant, Davenport, when his deed was given, was not in possession of, and had no title to, the land. He deeded, with covenant of warranty, to Potter, the latter in like manner to Booth, who subsequently quit-claimed to the plaintiff, Wilder. Judgment was rendered in the Supreme Court for the plaintiff. It is true that the question now under consideration was not raised in the above cases; but it can hardly be supposed that it would have escaped the attention of the able counsel engaged, had they regarded it as a tenable one. The cases indicate how the question has been regarded heretofore by the bar in this State ; for if possession by the covenantor had been necessary to cause the covenant to attach to the land, it would no doubt have been so alleged in the declaration; and if not so alleged, the declaration would probably have been met by a demurrer.
IY. The defendant contends that this court has no jurisdiction of the action; that it is local and can only be maintained in the state where the land lies. Such, undoubtedly, was the rule at common law. By that law, if the action for the breach of a covenant was founded upon privity of contract it was *105transitory; e.g., covenant between the original parties ; but if upon privity of estate, it was local. By this'rule, all actions brought by the assignee of an estate conveyed with covenants running with the land, against the covenantor, to enforce such covenants, were local. In covenants concerning land, an assignee oí the land is a stranger to the personal contract between the parties thereto: he is not privy to it; and the only right he has to maintain an action in his own name for their breach, is upon those covenants which “run with the land,” or in other words, those which follow the interest demised; and hence the action is said to be founded upon privity of estate. It is when the right-or obligation created by the covenant is attached to the interest conveyed or to the estate out of which it is created, so that the right or obligation upon an assignment of the estate, devolves upon the assignee. Goulds PI. Chap. III. s. 118, div. 2 ; Chitty PI. 270. But it is argued that the action is local, for that in case of a judgment against the defendant he is entitled to an order from the court requiring a conveyance to him from the plaintiff of the lands in controversy, and the order could not be effectually made by a court in this State; and cite the cases of Catlin v. Hurlbut, supra, and Shorthill v. Ferguson, 47 Iowa, 284. We do not say that the defendant is entitled as matter of right to such an order. The latter case was in equity and the court held that before it would enter judgment for the plaintiff he must tender a conveyance of the land to the defendant; the same result being reached in the other case cited, by stay of execution. The judgment of the court in such cases does not effect the title to the land, by any direct action or process, against the land itself; but the court having obtained jurisdiction of the person of the owner it may, in a proper case, decline to enter judgment, or, it may stay execution after judgment, until he make such conveyance as justice requires him to do, as a condition of obtaining judgment and execution. Indeed cases in equity go much farther. Eorer on Int. St. Law 207, 211. The judgment in no way affects *106the real estate ; it is in personam, sounding in damages only. But it is enough to say that the common law, as to certain actions, including the one at bar, being local, has been superseded by our statute, regulating the places in which actions shall be brought, and none are local unless made so by statute. Hunt v. Pownal, 9 Vt. 411" court="Vt." date_filed="1837-01-15" href="https://app.midpage.ai/document/hunt-v-town-of-pownal-6571967?utm_source=webapp" opinion_id="6571967">9 Vt. 411; June v. Conant, 17 Vt. 656" court="Vt." date_filed="1845-01-15" href="https://app.midpage.ai/document/june-v-conant-6573253?utm_source=webapp" opinion_id="6573253">17 Vt. 656; Univ. of Vermont v. Joslyn, 21 Vt. 52" court="Vt." date_filed="1848-12-15" href="https://app.midpage.ai/document/university-of-vermont-v-joslyn-6574006?utm_source=webapp" opinion_id="6574006">21 Vt. 52. This action by our statute is transitory.
V. The defendant filed sixty-two exceptions to the report of the referee. Except those numbered 15, 18, 22, 23, 24, 31, 33, 37, 43, 48, 51, and 52, they are either waived or rendered immaterial by the disposition of questions already made. Nos. 15, 18, 22, and 43 relate to a plan of the land, made by a surveyor, and used by him when testifying. There was no error in permitting its use. The main reason urged against its use, is, that it was in part a copy of the government survey. This did not render it objectional, but rather tended to add to its correctness. It was made by the witness from surveys of the government and his own observations. Such plans are constantly used in trials and ofttimes are of great service. The exceptions Nos. 23 and 24 relating to the declarations of Reed, Sherwood and Knight and their workmen on the land, in the year 1882, we think were legitimate evidence to show an eviction of the plaintiff.
We have not been furnished with a copy of the testimony of Tillotson referred to in exceptions Nos. 31, 33, and 52, nor the depositions or copies thereof referred to in Nos. 37, 48, and 51, therefore are unable to say that there was any error in the referee’s rulings. This disposes of the exceptions to the report, relied upon at the hearing.
VI. The deed of Daniel F. Tillotson to the plaintiff purporting to convey the land in question, and under which the plaintiff claims that the covenant of waranty came to him, was executed in the presence of two witnesses, one of whom was *107the wife of the plaintiff. The defendant claims it was not properly executed. The law of Minnesota required two witnesses to the execution of a deed. Gen. Stat. Minn. 1878, 535, s. 7. The test of competency as stated in Morrill v. Morrill, 53 Vt. 74" court="Vt." date_filed="1880-10-15" href="https://app.midpage.ai/document/morrill-v-morrill-6581370?utm_source=webapp" opinion_id="6581370">53 Vt. 74, is the ability of the witness, at the time of the attestation, to testify. By the law of Minnesota she was a competent witness and could be examined with the consent of her husband. Gen. Stat. Minn. 1878, 792, ss. 7, and 10, first subdivision. We think when the plaintiff offered the deed in evidence he did consent to her being a witness. The deed was not objected to when offered in evidence for the reason that it was defectively executed. It was pertinent evidence tending to show an assignment of the land to the plaintiff, and not being objected to because not properly witnessed, became legitimate evidence. Quaere. Whether a deed defectively executed is not good between the parties to it. Fitch v. Lewiston Steam Mill Co. (Me.) 5 New Eng. Rep. 862.
VII. The covenant sought to be enforced was contained in a deed executed in Vermont, the grantor domiciled there, the grantees in New Hampshire. The land described in the deed was located in Minnesota. The question arises, by what law is the contract to be governed ? The defendant insists (see brief point I.) that the questions “must be decided according to Minnesota law”; and the plaintiff’s counsel invoke the aid of that law, upon the questions of the execution of the deed and the transitory character of the action. The contract being one which could only be performed in Minnesota, the parties evidently had in view the law of that state in reference to its execution. We think its construction and force, including the rule as to damages, must be governed by the law of that state. 2 Kent Com. 459. “ The law of the place where performance is to occur governs in respect to the validity and performance of contracts made in one state but to be performed in another.” Rorer on Int. St. Law, 50. “ Matters connected with * * * * * * performance are regulated by the law prevail*108ing at the place of performance.” Scudder v. Bank, 1 Otto. 406, 413. Tbe plaintifF claims damages under-the rule in tbis State, viz. : the value of the premises atthe time of the eviction. Tbe referee makes no finding of wbat the law of Minnesota is. It should have been found as a fact. No claim is made that we should presume it to be the same as the law of tbis State, as we perhaps have the power to do. Ward v. Morrison, 25 Vt. 593.
We bold upon tbe facts reported that tbe plaintiff is entitled to a judgment; but instead of rendering one for nominal damages, as is sometimes done in cases where tbe actual damages are not shown,.or presuming that the law of Minnesota is tbe same as that of Vermont, for tbe value of the premises at the time of tbe eviction, which might work great injustice, as tbe plaintiff is, by right, entitled only to damages accorded him by tbe law of Minnesota, and tbe court below having no occasion to examine tbe subject of damages, tbe judgment there having been for tbe defendant, we reverse the judgment and remand tbe case that tbe County Court may determine by a recommittal of the report or otherwise, wbat damages tbe plaintiff is entitled to by tbe rule which obtains in Minnesota, and render judgment accordingly.
Judgment reversed and cause remanded.