It is a real covenant, and runs with the estate in respect to which it is made, into the hands of whoever becomes the owner ; 2 Washb. R. P. 659 ; Chal. R. P. 279 ; Lau rence v. Senter, 4 Sneed (Tenn.) 52 ; Mar bury v. Thornton, 82 Va. 702, 1 S. E. 909; Succession of Cassidy, 40 La. Ann. 827, 5 South. 292; against the covenantor and his personal representatives ; McClures' Ex'rs v. Gamble, 27 Pa. 288; Carter v. Denman's Ex'rs, 23 N. J. L. 260 ; see Mygatt v. Coe, 142 N. Y. 78, 36 N. E. 870, 24 L. R. A. 850; to the extent of assets received, and cannot be sev ered therefrom; Lewis v. Cook, 35 N. C. 193.
The covenant of warranty and that of seisin or of right to convey are not equiva lent covenants. Defect of title will sustain an action upon the latter, while disturbance of possession is requisite to recover upon the former; Douglass v. Lewis, 131 U. S. 75, 9 Sup. Ct. 634, 33 L. Ed. 53. Grantors hav ing made an express contract of warranty, cannot set up knowledge of vice in their ti tle, to exonerate themselves from the obliga tion of their contract ; New Orleans v. Gaines, 138 U. S. 595, 11 Sup. Ct. 428, 34 L. Ed. 1102.
The action for breach should be brought by the owner of the land and, as such, as signee of the covenant at the time it Is bro ken ; Bickford v. Page, 2 Mass. 455 ; Elder v. Elder, 10 Me. 81, 25 Am. Dec. 205 ; Thomp son v. Sanders, 5 T. B. Monr. (Ky.) 357 ; Chase v. Weston, 12 N. H. 413 ; but may be by the original covenantee, if he has satis fied the owner ; Withy v. Mumford, 5 Cow. (N. Y.) 137; Wheeler v. Sohier, 3 (Mass.) 222 ; Thompson v. Sanders, 5 T. B.. Monr. (Ky.) 357 ; Booth v. Starr, 1 Conn. 244, 6 Am. Dec. 233 ; Markland v. Crump, 18 N. C. 94, 27 Am. Dec. 230; Redwine v. Brown, 10 Ga. 311; Smith v. Perry, 26 Vt. 279.
To constitute a breach there must be as eviction by paramount title ; Rawle, Coy. 131; Fowler v. Poling, 6 Barb. (N. Y.) 165 ; Evans v. Lewis, 5 Harr. (Del.) 162 ; FarieS v. Smith's Adm'r, 11 Rich. (S. C.) 80; Norton, v. Jackson, 5 Cal. 262 ; Hannah v. Hender son, 4 Ind. 174 ; Picket's Adm'r v. Picket's Adm'r, 6 Ohio St. 525 ; VancOurt v. Moore, 26 Mo. 92 ; Moore v. Vail, 17 Ill. 185 ; Reed v. Pierce, 36 Me. 455, 58 Am. Dec. 761; Hig gins v. Johnson; 14 Ark. 309, 60 Am. Dec. 544; Cheney v. Straube, 35 Neb. 521, 53 N. W. 479 ; McGregor v. Tabor (Tex.) 26 S. W.
443 ; Gleason v. Smith, 41 Vt. 296 ; which may be constructive; Curtis v. Deering, 12 Me. 499 ; Moore v. Vail, 17 Ill. 185; and it is sufficient if the tenant yields to the true owner, or if, the premises being vacant, such owner takes possession ; St. John v. Palmer, 5 Hill. (N. Y.) 599 ; Hamilton v. Cutts, 4 Mass. 349, 3 Am. Dec. 222; Beebe v. Swart wout, 3 Gil. (Ill.) 162 ; Wilmington & R. R. Co. v. Robeson, 27 N. C. 393; Ogden v. Ball, 40 Minn. 94, 41 N. W. 453 ; Hodges v. Lath am, 98 N. C. 239, 3 S. E. 495, 2 Am.. St. Rep. 333; Succession of Cassidy, 40 La. Ann. 827, 5 South. 292 ; McGary v. Hastings, 39 Cal. 560, 2 Am. Rep. 456 ; Kellog v. Platt, 33 N. J. L 328. But in such case the grantee must prove the existence and assertion of such paramount, outstanding, hostile title; Brown v. Corson, 16 Or. 388, 19 Pac. 66, 21 Pac. 47; Claycomb v. Munger, 51 Ill. 377 ; Crance v. Collenbaugh, 47 Ind. 256; Ryerson v. Chap man, 66 Me. 557; Merritt v. Morse, 108 Mass. 276; Smith v. Sprague, 40 Vt. 43 ; and as sume the burden of proof with as much par ticularity as if suing in ejectment; Rawle, Coy. § 136; Thomas v. Stickle, 32 Ia. 76; Westrope v. Chambers' Estate, 51 Tex. 178 ; unless the adverse right has been established by a judgment or decree in a suit of which the covenantor had been properly notified; Rawle, Coy. § 136; in which case the judg ment or decree will be conclusive evidence of the validity of the paramount title; id. See id. § 123 et seq.
Exercise of the right of eminent domain does not render the covenantor liable ; Tay lor v. Young, 71 Pa. 83; Kimball v. Semple, 25 Cal. 452 ; Raymond v. Raymond, 10 Cush. (Mass.) 134; Brown v. Jackson, 3 Wheat. (U.' S.) 452, 4 L. Ed. 432, When the covenantee is threatened with eviction, it is usual and proper for him to give notice to the covenantor to appear and defend the suit. If it appears on the record that the covenantor received the notice or if he defends the suit, recovery therein will be conclusive against him in an action by the covenantee; the question of no tice will go to the jury on the facts. If no notice was given, the record of the adverse suit is not even prima facie evidence that the adverse title was paramount. Notice of the Adverse suit is not indispensable to a recov ery against the covenantor; Rawle, Coy. § 125.