1, therefore, conclude, that the determinations in the above mentioned cases of Kingdon v. Nottle, are against the ancient, uniform and established law of Westminster Hall; against well settled principles and decided cases in the surrounding States; and that the judges pronouncing them would have been of an opinion different from the one expressed had they recognized the principle here well established, that the breach of the covenant of seisin is, in its nature, total, and the measure of damages the whole consideration money paid for the land. As a consequence, I am of opinion that the plaintiff cannot sustain his action on the covenant of seisin.
2. The next question relates to the covenant of freedom from incumbrances.
The deed of the defendant to George Welton contains a covenant of this description; and the plaintiff claims title to the covenant, and a right to recover for a breach of it, by virtue of a deed of quitclaim from the defendant and Welton. Without a further statement of fact, it is sufficient to remark that the plaintiff has no right to recover for the breach of this covenant; and if he had, no breach of it is assigned.
First, he has no title to the covenant of freedom from incumbances, nor right to recover for the breach of it. His only claim is founded on the principle that this covenant runs with the land. In opposition to this claim, I observe, that the covenant above mentioned was personal, and not a real covenant; that it was broken in the testator's lifetime, and could not run with the land, - a peculiarity attending real covenants only; and of consequence, that George Welton is the only person who can sue on this unassignable contract. This covenant is classed, by the late Chief Justice Swift (in the first volume of his Digest, p. 370), with the covenant of sesin and of good right to convey; and in relation to them all, he correctly says: "These covenants must be all broken at the time of executing the deed, or they never can be; for if at that time, the grantor is not well seised of the premises, as an indefeasible estate, or if he had no right to sell, or if any incumbrance existed, then the covenants are broken. But if the grantor is seised, has a right to sell, or there are no incumbrances at the time of making the deed, then these covenants can never be broken; for no subsequent act can be done, by the grantor, which will amount to a breach of them; as he can do no act, that will affect or incumber the estate. These covenants, of course, cannot be real covenants; for being broken at the instant of their creation, they are choses in action, and cannot be assigned. The distinguishing feature of the real covenant is, that it may be broken at a future time; and it is this quality which renders it assignable; but it must be assigned before it is broken; for when once broken, the right to recover damages, is a chose in action, which cannot be assigned." With these observations, I entirely concur. The fundamental question, on which the whole doctrine depends, is, when is the covenant of freedom from incumbrances broken? It is a covenant for a fact, existing, or said to exist, not in futuro, but in presenti; at the moment when the deed is delivered. The phraseology of the covenant is, that the premises are free from incumbrances; not that they shall in future be free; just like the expression the grantor is seised, and has good right to convey. If the covenant be true, it can never be broken; if it be false, it is broken immediately, in which event it is a chose in action, and cannot be assigned. The doctrine contended for was adjudged by the supreme judiciary of Massachusetts, in Prescott v. True/nan, 4 Mass. Rep. 627, and by the Supreme Court of New York, in Delavergne v. Norris, 7 Johns. Rep. 358.
Secondly, no breach of the covenant in question has, by the plaintiff, been assigned. The averment is merely this - that the estate "is not free from all incumbrances." It is sufficient to say, that the law requires the incumbrance to be specially named and set forth; or the defendant will always be taken by surprise. Incumbrances, in their nature, are numerous. A mortgage, a way, a right to dig turf, to pasture cattle, or to have dower assigned, and in short, an easement of any kind, is an incumbrance, because it is a load or weight on the land, and must lessen its value. Prescott v. Trueman, 4 Mass. Rep. 630. It is opposed to the fundamental principles of pleading (which are to inform the court, the jury, and, above all, the party, by the altercations in writing), to authorize a general allegation that there are incumbrances, without declaring what they are. The point is settled, by first principles, and is too clear for controversy. In Marston v. Hobbs, 2 Mass. Rep. 433, it was said, by Chief Justice Parsons, that the breach of the covenant against incumbrances, like that for quiet enjoyment, must be specially assigned, showing its nature, and the interruption complained of. The same point was adjudged, by the same court, Bick-ford v. Page, 2 Mass. Rep. 455; and in De Forest v. Lete, 16 Johns. Rep. 122, it was said, by the Supreme Court of New York, that under a general assignment of a breach of the covenant against incumbrances, the plaintiff cannot give evidence of his having bought in an incumbrance, because it was not specifically alleged in the declaration; and for the admission of such evidence, a new trial was granted.
The charge of the judge to the jury, in this case, is free from exception. The covenant in question, as was said by him, is broken instantaneously, if ever; and under the negative averment of not free from incumbrances, the jury were correctly instructed, that proof of a particular incumbrance was inadmissible, because it should have been set forth specifically, to apprise the defendant of its nature, and give him the means of preparation for his defense.
(b.) Covenant against incumbrances,