broken once for all, but is in the nature of a covenant to do a thing toties quoties as the exigency of the case may require.' Here then the damage, that the plaintiff was unable to sell at as large a price as she would have obtained if the title had been good, was held to constitute a continuing substantive cause of action; and if the action had been brought at a long subsequent period, and the statute of limitations had been pleaded, the time could not have run from any earlier period than the accruing of that action.

"And so in King v. Jones,1 where the covenant was for further assurance, the covenantee in his lifetime called upon the covenantor to levy a fine and afterwards died, and the plaintiff, his heir, to whom the covenant had passed as assignee, entered upon the premises and was possessed, and was afterwards evicted and brought his action, it was objected that the breach was in the lifetime of the original covenantee, and that he alone was entitled to sue, and that if any action lay after his death it must be by his executors, as the damages belonged to his estate. But, after an elaborate argument and time taken to consider, it was held by the Court of Common Pleas that the action well lay, and that the refusal to levy a fine (the further assurance required) was a breach and a damage to him; that the ancestor (the original covenantee) had required the defendant to perform his covenant, but gave him time and did not sue him instantaneously for his neglect, but waited for the event. It was wise in him so to do until the ultimate damage was sustained, for otherwise he could not have recovered the whole value; the ultimate damage then not having been sustained in the time of the ancestor, the action remained to the heir, who represents the ancestor as to the land, as the executor in respect of personalty.' These decisions show that it is the resulting damage, and not merely the breach of covenant, which gives the right of action.

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"It is true when these cases were decided there was no statute of limitation expressly taking away the right to sue upon a covenant after a certain number of years from the breach. But the language of the statute is that no action shall be brought but within twenty years after the action has accrued; and we have only to consider the real nature of the covenant for title, and of the various kinds of breaches of it, which may be committed, to see that the statute of limitations is wholly inapplicable to such breaches, except where the right of action is upon an eviction of the whole property conveyed, so that there is no land with which the covenant may run and nothing left upon which the covenant can operate.2

15 Taunt. 418; 4 M. & S. 188. See also Bennett v. Waller, 23 Ill. 93.

2 The covenant being continuous, each breach constitutes a separate cause of action, and, if within the statute, it should apply only to breaches occurring more than

the statutory period before action brought; but the great majority of the cases in this country hold that the covenant of seisin contained in the conveyance of real estate does not run with the land. They hold the covenant to be in præsenti, and that it

"In such a case the statute may apply, and from such an eviction the time may begin to run. But, in the cases cited as here, the breach being the grant and continued existence of a lease of a part of the property only, as of the mines and minerals under the land, how can the statute apply? The mine may never be worked at all, so that no damage may ever be sustained; and if an action be brought on the grant of the lease, only nominal damages may be recovered. But the lease may be for forty years; a quantity of minerals may be taken at the end of ten years, a number of houses on the surface subverted and destroyed in twenty years, and a mansion injured in thirty years.

"If these be not separate and substantive causes of action, upon each of which the complainant has at least twenty years to sue, of what use is the covenant in such a case? But suppose another case: Covenant for title in a conveyance in fee of a landed estate. It turns out that the covenantor a year or two before has sold and conveyed the reversion of one-half of the property at his death to A. B., provided A. B. is then living. The covenantor lives for twenty years and then dies, and A. B. survives him and enters. Upon these facts, I apprehend it is not to be doubted that the covenant is broken as soon as it is made; for if the purchaser, the covenantee, were minded to sell the property, or he became bankrupt, and it was of necessity to be sold, it would sell for much less than if there were an indefeasible title in fee simple. But supposing no action to be brought until the death of the covenantor and the entry of A. B., can it be contended that the statute of limita

is broken, if at all, when the deed is delivered, and that the claim for damages thereby becomes personal in its nature to the grantee, and is not transferred by a conveyance to a subsequent grantee. But in Iowa, where deeds have been reduced to forms of great simplicity, the English doctrine, as stated in the text, has been fully adopted. A contrary rule is productive of great hardship, and operates oppressively in all cases where the land has been conveyed by the grantor, either to the grantee or subsequent purchaser, and there is a fair field for legislative intervention if necessary to correct the evils resulting from the doctrine so generally adopted here. There can be no good reason why, if the purchaser is evicted, he should not receive the indemnity of the covenant; for he is not only the first but the only sufferer in every instance, except where he has not paid for the land, and for the grantee under the deed, who has sold and received his pay for the land, so that he sustains no loss to

be permitted to sue and recover damages under this covenant is exceedingly unjust. If there is a covenant of warranty in the first grantor's deed, then he is liable over to his grantee under this covenant; but if there is no such covenant, then we have the anomalous case of a party who has no interest being permitted to sue for and recover damages where he has sustained none. Scholfield v. Iowa Homestead Co., 32 Iowa, 317. And in such a case the rule of damages being usually the consideration money and interest (Vail v. Junction R. R. Co., 1 Cinc. (Ohio), 317), a party is permitted to profit at the expense of others by a rule of law that is both unwise and unjust. Richards v. Bent, 59 Ill. 38. In Indiana, Massachusetts, South Carolina, Ohio, and Missouri, the courts have given effect to the doctrine stated in the text. Martin v. Baker, 5 Blackf. (Ind.) 282; Devone v. Sunderland, 17 Ohio, 52; Dickson v. Desiree, 23 Mo. 152; 1 N. & Mc. (S. C.) 104.

tions would be a bar? If it be, and the covenantee was ignorant of the conveyance until the death of the covenantor, he loses half his land and has no remedy. And if he hears of it and sues within the twenty years, but in the covenantor's lifetime, how can the jury estimate the damages in the uncertainty whether the covenantor may not survive A. B., and so that the covenantee will never be disturbed in his title? "I apprehend, therefore, that upon these grounds and upon all the authorities the lease in question was a continuing breach of covenant, and that the plaintiff was entitled to his action at any time within twenty years of any damage, whether nominal or substantial, being sustained by entry into the mine or otherwise, as long as the lease was in force, and consequently from the entry into the mine in 1848, and the taking of the fragments of coal; and further, that the action lies by reason of the mere existence of the lease which, as conferring a right to enter the mine and upon the surface, affected more or less the value of the property until it expired by effluxion of time in 1865. I think, therefore, that judgment should be entered for the plaintiff, with nominal damages."

Previously to this statute, as before stated, a specialty debt was presumed to have been paid at the end of twenty years. And it seems that even in England, if the statute, through some defect in pleading, cannot be taken advantage of, yet the fact of payment may still be presumed.1

SEC. 174. Covenants of Warranty, against Incumbrances, &c. Covenants running with the land are such as relate to and concern the land, and pass with it where there is a privity of estate. Of this class are covenants of warranty, which are in effect the same as those

1 Best on Presumptions, 188. The rule relative to mortgages is, that, where the mortgagee has never entered under the mortgage, and there has been no payment of interest, nor demand thereof, nor any admission of the mortgage as a subsisting lien, within twenty years, the mortgage will be presumed to have been satisfied. Dunham v. Minald, 4 Paige (N. Y.) Ch. 441; Blethen v. Dewnal, 35 Me. 556; Chick v. Rollins, 44 Me. 104; Boyd v. Harris, 2 Md. Ch. 210; Cheever v. Perley, 11 Allen (Mass.), 584; Vanmaker v. Van Buskirk, 1 N. J. Eq. 685; Evans v. Huffman, 5 id. 354; Collins v. Torry, 7 Johns. (N. Y.) 278; Jackson v. Hudson, 3 id. 375; Giles v. Baremore, 5 Johns. (N. Y.) Ch. 545. See also Jackson v. Pratt, 10 Johns. (N. Y.) 381; Jackson v. Delancey, 11 id. 365; Belmont v. O'Brien, 12 N. Y. 394. And the same rule applies to all sealed instruments for the payment

of money.

The purchaser of land, who had given a mortgage thereon for the purchase-money, contracted with a third person to sell him certain land, and, as part of the consideration thereof, such third person covenanted to discharge the abovementioned mortgage. The mortgagee subsequently became the assignee of the contract, agreeing to perform it, and took possession under it of the land included therein, and continued in possession to the time of the present suit, during which time no payment, or demand thereof, had been made upon the mortgage, though more than twenty-three years had elapsed between the time when the last payment became due and the filing of this bill. Held, that the mortgage was satisfied in equity, and would be presumed satisfied at law; and it was ordered to be cancelled. Kellogg v. Wood, 7 Paige (N. Y.) Ch. 578.

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for quiet enjoyment, and extend to the possession as well as the title, so that any disturbance of the free and uninterrupted use of the premises under a superior right, even without an actual expulsion therefrom, is in law an eviction and a breach of the covenant. There can be no breach of this covenant until there is an actual eviction either from the whole or some part of the premises,2 and the eviction must be stated in the declaration. Consequently neither the statute, the common law, nor statutory presumption attaches to actions upon this covenant until the grantee or lessee is evicted from some part of the premises. But covenants against incumbrances are said to be broken as soon as the deed is delivered, if the grantor or his predecessors in the title had previously mortgaged or incumbered the same, and, although the mortgage is not due, nominal damages are recoverable; but, according to the English doctrine and some American cases, the grantee may wait until the mortgage becomes due, and neither the statute nor the presumption from lapse of time will attach to the covenant for actual damages until that time." But little difficulty will be experienced in

1 Rea v. Minkler, 5 Lans. (N. Y.) 196; Withby v. Mumford, 5 Cow. (N. Y.) 137; Suydam v. Jones, 10 Wend. (N. Y.) 180.

2 Cowdrey v. Coit, 44 N. Y. 382; Kent v. Welch, 7 Johns. (N. Y.) 258; Knepper v. Kurtz, 58 Penn. St. 480; Patton v. McFarlane, 3 P. & W. (Penn.) 419; Flowers v. Foreman, 23 How. (U. S.) 132.

3 Clark v. McAnulty, 3 S. & R. (Penn.) 364; Paul v. Witman, 3 W. & S. (Penn.) 407; West v. Stewart, id. 189.

4 Cathcart v. Bowman, 5 Penn. St. 317. 5 Funk v. Voneida, 11 S. & R. (Penn.) 109.

6 This rule is fully adopted in an ably considered case in Illinois. Richards v. Bent, 29 Ill. 38, in which the court say: "The principle which allows an action in the name of the assignee of the covenant of seisin, applies with much greater force in the case of the assignment of the covenant against incumbrances, when drawn in the form usual in this country. Where the covenant of seisin is broken, and there is an entire failure of title, the breach is final and complete, the covenant is broken once for all actual damage and all the damages that can result from the breach have accrued; the measure of damages is the purchase-money and interest, which are at once recoverable. In such case the right of action is substantial, and its transfer might well be held to come within

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the rule prohibiting the assignment of choses in action. But the covenant against incumbrances is one of indemnity; the covenantee can recover only nominal damages for a breach thereof, unless he can show that he has sustained actual loss or injury thereby, or has had to pay money to remove the incumbrance. Without this there is the barren right of recovery of only nominal damages; the right of action is one only in name. A subsequent grantee does not claim to sue, by means of the purchase of a chose in action. The subject of his purchase was a lot of ground; his claim is that the covenant was annexed to the real estate; that it ran with the land and passed to him, not by direct operation of assignment, but as an incident to the land. The right of suit for nominal damages, which the covenantee had against the covenantor, was no matter of consideration between the parties, at the time of the purchase, but they expected that, in case the grantee should sustain any actual damage by reason of a prior incumbrance, the covenant would then be to him a means of indemnity. The case, therefore, does not come within the reason of the rule prohibiting the assignment of choses in action. Being unembarrassed by deci sions of our own, upon the point, we feel free to adopt the more reasonable and just of the two rules; which is, the one which sustains the right of the subsequent

determining when the statute begins to run upon or the presumption attaches to a covenant, because in all cases it begins to run from the time of a breach thereof; and it is only necessary to ascertain at what time an action could first have been maintained thereon, to determine the period from which the running of the statute began.

Enough has already been stated to show the distinction between continuous covenants and those which are exhausted by a single breach; and this distinction is important and should not be lost sight of.

SEC. 175. Bonds. — Upon bonds, the statute, in those States where this class of obligations is within it, does not begin to run until there is a breach of condition; and if there are several distinct conditions, it only begins to run upon each condition from the time each was broken;1 and the same rule prevails as to sureties and principals therein. Upon an indemnity bond the statute does not begin to run until the party to whom it was given has been damnified; and it is doubtful whether the mere fact that a judgment has been obtained against him is sufficient to put the statute in motion. The fact that he has become liable to pay, without payment in fact, is not believed to be sufficient. In an English case where the plaintiff's declaration was framed upon a bond not setting out a condition, and the defendant pleaded that the cause of action did not accrue within twenty years, and issue was joined thereon, and it appeared at the trial that the bond had been executed more than twenty years before the action was brought, but that it was a post-obit bond for the payment of a sum of money after the death of a person who was proved to have died within twenty years, it was held that the statute did not begin to run until the death of such person, and consequently that the action was seasonably brought. Where acts are, by the terms of a bond, to be done successively in a series of years, a new cause of action arises from each omission to do the act at the proper time; and, if the plaintiff can show any breach within the statutory period, he is entitled to recover for that. If a bond is given, conditioned for the faithful discharge of the duties of a certain office, the statute begins to run in favor of the surety thereon from the time of an actual breach. Thus, where an action was

grantee to bring an action in his own name, against the principal grantor, on the covenant against incumbrances." The justice and the reason of this doctrine are incontrovertible. But it must be remembered that in a great majority of the States à contrary doctrine is held, and the statute attaches to this covenant as soon as the Ideed is delivered. Chapman v. Kimball, 7 Neb. 399.

1 Salisbury v. Black, 6 H. & J. (Md.) 293; Thurston v. Blackeston, 36 Md. 501.

2 Thurston v. Blackeston, 36 Md. 501.

3 Illies v. Fitzgerald, 11 Tex. 417. In Hall v. Creswell, 12 G. & J. (Md.) 36, it was held that the right of action accrued from the time of payment, and consequently that the statute then began to

run.

4 Sanders v. Coward, 15 M. & W. 56. 5 Blair v. Ormond, 20 L. J. Q. B. 452; Amott v. Holden, 22 id. 19. In Keefer v. Zimmerman, 22 Md. 274, it was held no defence to an action for the breach of a covenant that there has been a previous breach upon which the statute has run.