Woodard v. Ramsay, 9 N.C. 335, 2 Hawks 335 (1823)

June 1823 · Supreme Court of North Carolina

9 N.C. 335, 2 Hawks 335

Woodard v. Ramsay

From Hertford.

i cuveuaiit “ to warrant and defend the right, title and property to land, against the lawful claim or claims of any person or persons whatsoever,” is not a covenant for seisin. Held, therefore, that an •y.üon will not lie. for want of title in the covenantor to the land, when lie conveyed it until some claim has been made, or the cove nantor otherwise disturbed in his possession.

Tliis was an action of covenant on a deed, tried before JVhs/t, Judge. The deed purported to be a conveyance by the Defendant to the Plaintiff, of a lot of ground in Murfreesborough, and contained this clause: “ And 1 the said Henry Ramsay do further bind myself, my heirs, executors and administrators, to warrant and defend the right, title, and property of said lot unto him the said Lewis Woodard, his heirs and assigns forever, against the lawful claim or claims of any person or persons Whatsoever.”

The alleged breach of this clause was, that the Defendant had no title to the premises at the time he executed the deed. The Plaintiff admitted that he had never been in possession, nor had he brought anysuit to obtain possession, and he rested bis right to recover on the Defendant’s want of title, and offered to shew a good title in fee single in another at the time of the conveyance by the grantor. The Court ruled that the co venant con - tamed in the deed was for quiet enjoyment only, not of seisin, and that it was not material whether the grantor had title ; that the Plaintiff, to recover, must shew either an eviction, or that he was kept out of possession on an action brought. The Plaintiff was nonsuited, and moved for a new trial: the motion was refused, and from the judgment Plaintiff appealed.

The case was submitted, and

Hall, Judge.

I think in the present case, the, Plain tiff cannot recover. The Defendant has not entered into a covenant for seisin, in which case an action no doubt would lie, in case the Defendant had no title in the land when he conveyed it, or attempted to convey it. The present action is brought upon a covenant e< to warrant and defend the right, title and property against the daim of any person or persons whatsoever.” It is not alleged that any claim has been made, or that the Plaintiff has been in any respect disturbed in his possession. I therefore think tiiat the rule for a new trial should be discharged.

The other fudges concurred.