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Several points have been argued in this case, upon which the opinion of the court will be now pronounced. In the first place, it is stated, that a material variance exists between the writ and declaration, of which (being shown upon oyer) the court, upon a general demurrer to the declaration, are bound to take notice; and if so, it is fatal to the action. The supposed variance consists in this, that in the writ all the defendants are sued by their christian and surnames only; whereas, in the declaration, the deed on which the action is founded is averred to be made by the defendant, John Craig, and by the other defendants, Robert Johnson and Elijah Craig, 'as trustees to the said John,' and the covenant on which the breach is assigned, is averred to be made by the said John Craig, and Robert Johnson and Elijah Craig, 'trustees to the said John.' The argument is, that the writ is founded upon a personal covenant, and the declaration upon a covenant in auter droit, upon which no action lies at law; or if any lies, the writ must conform in its language to the truth of the case. It is perfectly clear, however, that the exception, even if a good one, cannot be taken advantage of upon general demurrer to the declaration, for such a demurrer is in bar to the action; whereas variances between the writ and declaration are matters pleadable in abatement only. But there is nothing in the exception itself. A trustee, merely as such, is, in general, only suable in equity. But if he chooses to bind himself by a personal covenant, he is liable at law for a breach thereof in the same manner as any other person, although the describe himself as covenanting as trustee; for, in such case, the covenant binds him personally, and the addition of the words 'as trustee' is but matter of description to show the character in which he acts for his own protection, and in no degree affects the rights or remedies of the other party. The authorities are very elaborate on this subject. An agent or executor who covenants in his own name, and yet describes himself as agent or executor, is personally liable, for the obvious reason that the one has no principal to bind, and the other substitutes himself for his principal.a

Having answered these minor objections, we may now advance to the real controversies between the parties. It is contended, that the two covenants in the deed are so knit together, that they are to be construed in connexion, so that the clause as to an indemnity with other lands, in case of an eviction by a prior legal claim, is to be applied as a restriction to both covenants; and if so, then the action cannot be sustained, for the declaration does not allege any eviction, or any demand or refusal to indemnify with other lands. There is certainly considerable weight in the argument. It is not unreasonable to suppose that then the parties had provided a specific indemnity for a prior claim, they might mean to apply the same indemnity to all the other cases enumerated in the first covenant. But something more than the mere reasonableness of such a supposition must exist to authorize a court to adopt such a construction. The covenants stand distinct in the deed, and there is no incongruity or repugnancy in considering them as independent of each other. The first covenant being only against the acts and incumbrances under the parties to the deed, which, they could not but know, they might be willing to become responsible to secure its performance by a pecuniary indemnity; the second including a warranty against the prior claims of strangers also, of which the parties might be ignorant, they might well stipulate for an indemnity only in lands of an equivalent value. The case ought to be a very strong one, which should authorize a court to create, by implication, a restriction which the order of the language does not necessarily import or justify. It ought to be one in which no judicial doubt could exist of the real intention of the parties to create such a restriction. It cannot be pronounced that such is the present case; and this objection to the declaration cannot, therefore, be sustained.

The remaining objections turn upon the sufficiency of the breach alleged in the declaration. It is contended, that the covenant on which the breach is assigned is against the joint, and not the several acts and incumbrances of the parties to the deed, and that, therefore, the breach, which states an assignment by John Craig and Robert Johnson only, is wholly insufficient. It is certainly true that, in terms, the covenant is against the acts and incumbrances of all the parties, and the words 'every of them' are not found in the deed. Some of the incumbrances, however, within the contemplation of the parties are not of a nature to be jointly created; as, for instance, the incumbrance of dower and title of dower. This very strongly shows that it was the intention of the parties to embrace in the covenant several, as well as joint acts and incumbrances. There is also a reference in the premises of the deed to a covenant for a conveyance previously made by John Craig to Samuel M'Craw, against which it must have intended to secure the grantees; and if so, it fortifies the construction already stated. If, therefore, the point were of a new impression, it would be difficult to sustain the reasoning, which would limit the covenant to the joint acts of all the grantors; and there is no authority to support it. On the contrary, Meriton's case, though stated with some difference by the several reporters, seems to us completely to sustain the position that a covenant of this nature ought to be construed as including several, as well as joint incumbrances, and has certainly been so understood by very learned abridgers. Meriton's Case, Noy, 86. S.C.. Popham, 200. S.C.. Latch, 161. Bac. Abr. Covenant, 77. Com. Dig. Condition,(E.) This objection, therefore, is overruled.b

Another exception is, that there is no profert of the assignment described in the breach, nor is it shown to have been made for a valuable consideration. Various answers have been given at the bar to this exception; and without deciding on others, it is a sufficient answer that the plaintiff is neither a party nor privy to the assignment, nor conusant of the consideration upon which it was made, and therefore is not bound to make a profert of it, or show the consideration upon which it was made.

The last exception is, that the breach does not set forth any entry or eviction of the plaintiff under the assignment and patent to John Hawkins Craig. Assuming that an averment of an entry and eviction under an elder title be in general necessary to sustain an action on a covenant against incumbrances, (on which we give no opinion,) it is clear that it cannot be always necessary. If the grantee be unable to obtain possession in consequence of an existing possession or seisin by a person claiming and holding under an elder title, this would certainly be equivalent to an eviction and a breach of the covenant. In the case at bar the breach is assigned in a very inartificial and lax manner; but it is expressly averred, that the assignment and patent to John Hawkins Craig was a prior conveyance, which was still in full force and virtue, 'by reason of which said assignment, patent, and incumbrance, the said William (the plaintiff) hath been prevented from having and enjoying all or any part of the premises above mentioned.' We are all of opinion, that upon general demurrer, this must be taken as an averment, that the possession of the premises was legally withheld from the plaintiff by the parties in possession, under the prior title thus set up.c

Judgment reversed.

NotesEdit

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