The defendant demurred ore terms on the ground that the complaint does not state a cause of action in that it fails to set out facts necessary to support an action for breach of covenant of quiet enjoyment. Consequently the question of law involved may be stated as follows: If a grantor conveys land or an interest therein, which he does not own at the time of the conveyance, can the grantee thereupon institute an action for damages upon the covenant of quiet enjoyment where there has been no ouster, eviction or adverse claim?
“The covenant of warranty and the covenant of quiet enjoyment are not strictly personal like the covenant of seizin, which is broken when the deed is delivered if the title is defective, but they are prospective in their operation and an ouster or eviction is necessary to constitute a breach.” Wiggins v. Pender, 132 N. C., 628, 44 S. E., 362. To the same effect is the declaration in Cover v. McAden, 183 N. C., 641, 112 S. E., 817, as follows: “Ordinarily the mere existence of an outstanding paramount title to land will not authorize a recovery by the grantee in an action for breach of the covenant. There must be an eviction, actual or constructive, but not necessarily under legal process. ... In other words, to warrant recovery there must be some hostile assertion of the adverse title, unless the superior title is in the State.”
*805There is no allegation of ouster, eviction or adverse claim, nor is there allegation or supporting facts tending to show that the First Carolinas Joint Stock Land Bank is insolvent or that plaintiff has no adequate remedy at law. Porter v. Armstrong, 132 N. C., 66, 43.S. E., 542. Consequently the restraining order was improvidently granted, and the demurrer is sustained.
Reversed.