¶1delivered the opinion of the court.
¶2If this had been a covenant for quiet enjoyment only, it is clear that a lawful eviction of the grantee would be necessary to authorize the action, because such a covenant goes to the possession, and not to the title 5 (3 Johns. Rep, 471, 5 Johns. Rep. *106130.;) but, in this'case, the covenant against incumbrance's is coupled with it. The defendant not only covenants that the-plaintiff shall peaceably and quietly occupy and enjoy the premises, but that the premises, shall be free, clear, discharged, and unincumbered of, and from, all former and other titles,' charges, estates, and incumbrances of what nature or kind soever, had, made, committed, done, or suffered by the defendant, his-heirs or assigns,, or by any other person-,, or persons-, whomsoever. Is it true, the®, according to this .-covenant, that the premises were thus unincumbered when the conveyance was executed ? The contrary appears, to- be the case. The judgment of Murray Peyer, survivors of Murray, Peyery 4r. Wetsjm,. -exeat». tors, &c., was an existing incumbrance at the time* - The aliegation in the coyenant is not, therefore, founded in fact. . The covenant must be deemed to have -been broken’, and, without discharging the incumbrance, the plaintiff would have been enititled to nominal damages; but, in this case, the judgment was, averred to have been paid by him, which he had a right to do without waiting until he was evicted. He has, therefore, properly resorted to his action on the covenant, to recover .back the amount paid by him, in extinguishment of the judgment against the defendant. (7 Johns. Rep. 358.)
¶3Judgment for the plaintiff.