Chandler v. Brown , 59 N.H. 370 ( 1879 )

The covenant of general warranty in a deed is a covenant that runs with the estate in reference to which it is made, and may be availed of by suit in his own name, by any one to whom the same shall come by deed, even after several successive conveyances, or a descent or devise. 2 Washb. Real Prop. 662; Crooker v. Jewell, 29 Me. 527; Moore v. Merrill, 17 N.H. 75; Russ v. Perry, 49 N.H. 517. The plaintiff, being the owner of the premises, and in possession when the covenant of warranty was broken by the enforcement of the claim for dower by Mrs. Eastman, is the proper person to maintain this action for the breach of the covenant. 2 Washb. Real Prop. 662; Chase v. Weston, 12 N.H. 413; Griffin v. Fairbrother, 10 Me. 91; Allen v. Little,36 Me. 170; White v. Whitney, 3 Met. 81.

Whether Simpson and Haines, or Johnson, ever entered and took actual possession of the land under their deeds is immaterial. By the several conveyances, the legal title passed from the defendant to Simpson and Haines, from them to Johnson, and from Johnson to the plaintiff. The legal title carried the right of possession, and gave a constructive possession without actual entry upon the premises. Warren v. Cochran, 30 N.H. 379. This is not a case where the deed conveyed no land to which the covenants could attach. The land passed by the deed to the plaintiff, and when he entered and took actual possession of the premises, having the legal title, the covenant of warranty running with the land enured to his benefit. Moore v. Merrill, 17 N.H. 75, 81, 82; Wead v. Larkin, 54 Ill. 489; Brady v. Spurck, 27 Ill. 478.

It was not necessary to show an actual eviction of the plaintiff from the premises to maintain this action. The recovery of the judgment by Mrs. Eastman was sufficient evidence of the breach of the covenant of warranty. Loomis v. Bedel, 11 N.H. 74, 82; Drew v. Towle, 30 N.H. 531, 537; Sprague v. Baker, 17 Mass. 586; Donnell v. Thompson, 10 Me. 170. And the defendant having appeared and defended the suit of Mrs. Eastman for dower, the judgment recovered by her is conclusive against him as evidence of the breach of the covenant of warranty, and he is bound by that judgment. Littleton v. Richardson, 34 N.H. 179.

Judgment for the plaintiff on the report.

ALLEN, J., did not sit; the others concurred.