#### Woodford’s Heir v. Pendleton.

Monday, June 8, 1807.

Action of Covenant — Declaration—Sufficiency.—In an action by the heir for breach of covenants contained in a conveyance of lands to the ancestor, if the declaration avers the entry, seisin, and death of the ancestor, ''and that the lands, covenants, and writings aforesaid have descended on the plaintiff,” without setting forth the manner in which he derived his title, it is good after a verdict.

Same — Defect in Plea — Statute of Jeofails. — In an action against the heir on a covenant entered into by the ancestor, if a breach is assigned to have been committed both by the ancestor and the defendant; the defendant pleads that “he has not broken the covenant;” without saying any thing as to the breach by the ancestor; and the jury finds for the plaintiff that “the defendant has broken the covenant;” judgment ought not to be arrested; the defect being cured by the act of j eofails.

Same — When Unnecessary for Jury to Find Assets.— Where the declaration alleges that the heir has assets by descent; if he fails to plead that he has no assets, or does not set forth the assets in particular, it is not necessary for the Jury to find assets.

This was an appeal from a judgment of the District Court of Fredericksburg._

The appellee being the heiress of one Cat-lett brought an action of covenant against the appellant as heirs at law of W. Wood-ford, upon certain indentures of lease and release. The declaration, in the usual form, sets out the indentures, from Woodford to Catlett; (whereby the former convejTed to the latter, 300 acres of land, fully to include that quantity, with general warranty, covenants for peaceable entry, quiet enjoyment, and general indemnification against claims and suits;) also Catlett’s entry, seisin and death; and that W. Woodford bound himself and his heirs to Catlett, his heirs and assigns, for the performance of the several covenants contained in the indentures : after' which, the declaration states that “the lands, covenants and writings aforesaid, with all their rights, members, and appurtenances, have descended on the said plaintiff.” It is then averred, that the defendant is the heir of W. Woodford, and that assets to more than the value of 1001. have descended on him from the said W. Woodford. The breach assigned is, that the said W. Woodford, and the said defendant did not keep their covenants, but broke them, in this, that the said tract of land did not include 300 acres, but only 280 acres; and also in this, that they have not warranted and defended the plaintiff, and those under whom she claims, and their assigns, from all claims; nor kept them harmless and in quiet enjoyment; but, for want of title, they were prevented from taking possession, and had been evicted.

*The defendant, after taking oyer of the indentures, pleaded that he had not broken the indentures; and put himself upon the country; and the plaintiff likewise.

The jury, in their verdict, found that the defendant had not performed, but had broken the covenants as the plaintiff had alleged; and assessed her damages at seventy pounds.

The defendant filed errors in arrest of judgment, assigning that the plaintiff had not shewn that she was heiress at law to Catlett, or that she was entitled to this action under him.

The Court overruled the errors, and gave judgment for the plaintiff on the verdict; from which an appeal was taken to this Court.

Randolph, for the appellant, contended that the want of an averment in the declaration that the plaintiff was the heiress at law of Catlett, was a radical defect, which was not cured by the verdict. It is not sufficient to say that the “lands, covenants,” &c. descended on the plaintiff. Her title should have been expressly deduced, from the ancestor, and the manner of the descent stated. But she does not describe what kind of heiress she is; nor does she even say that the ancestor died intestate.

But the point on which he principally relied was, that there was no failure of title specified. The breach was assigned merely in the general language of the covenant. The rule in declarations of this kind, where damages are claimed for a breach, is, to state the manner in which the breach happened. There are two modes by which it may be done; either by charging an actual *143eviction, or a subsisting title in another. If either had been stated, reference might have been had to facts and documents to ascertain the truth of the charge.

If the issue had been properly joined in this case, still the verdict is incorrect. The covenant binds the man and his heirs; the declaration charges a breach in both the ancestor and heir; the issue is to the defendant himself; this is an issue only as to part. It is true, that judgment might have been given, as to the other part, for failing to plead, though it does not appear upon the •record. But ought not the verdict to have found assets? It may indeed be stated in the declaration that they descended: but assets which come to the hands of the heir being the gist of the action, they ought to have been specially found. An heir, in many cases, may admit assets by his pleading. *But, where proof of assets is necessary, nothing will supply the want of it. A title defectively set forth may be cured by a verdict, but where the gist of the action is not stated, it is never cured. In this case the descending of assets to the heir constituted the very gist of the action.

Botts, for the appellee. With respect to the objection that the plaintiff did not deduce her title from the ancestor under whom she claimed, the act of jeofails is decisive on the point; and some hundreds of cases might be cited to prove its application. If the i:lands, *&c.*descended,” how could they come to her, unless she was in a situation to take by descent?

But, it is said, that the manner in which the title was lost ought to have been specified. This has been sufficiently done, by stating that the defendant had no title, as to the land for which damages were claimed. It is admitted that the declaration is imperfect; but it makes out a casein which there were covenants by the ancestor which devolved upon the heir. He is expressly bound; and might have committed a breach as to some of the covenants. He pleads that there was no breach by himself; the verdict of the Jury has falsified his plea; and the Court will intend that damages were given for a breach actually committed by him. The most that can be said is, that the title is defectively set forth.

The defendant had no right to complain that the whole breaches were not put in issue. The parties may waive part of the issue, if they think proper.

But it is objected, that the jury have not found assets. If they had done so, they would have gone out of the issue; for they were only charged as to the breach of the covenants. Hike the case of an executor ; if* he plead fully administered, assets must be found; otherwise not. Why should a difference be made in the case of heirs?

He cited the case of Cohoons v. Purdic, (a) as decisive of the last point.

Randolph, in reply, insisted that the defects in the declaration and pleadings, were too much a matter of substance to be aided even by the omnipotence of the statute of jeofails. In suits on bonds with collateral conditions, it has always been held necessary to assign specially the breaches of which you complained, in order that the defendant might be prepared to answer. So, in a case like *the present, where the plaintiff charges an eviction, it is equally necessary that he should state by whom; that the defendant may be enabled to meet the allegation.

As to the necessity of finding assets; — ■ there is an essential difference between an heir and an executor. An heir is not answerable unless he have assets by descent; but an executor, representing the person of the testator, and being possessed of all his goods, immediately on his death, has nothing to do, when a debt is presented, but to inquire into its justice, and ascertain whether the assets of his testator will enable him to pay it.

The case in 3 Call is not like the present. There, the heir had pleaded a false plea relative to the assets.

Tuesday, June 9. — By the whole Court, judgment affirmed.

(a)

3 Call, 431.