¶1(common law.)
¶2Variances between the writ and declaration are matters pleadable in abatement only, and cannot be taken advantage of upon genes^l demurrer to the declaration.
¶3A trastee is, in general enable only in equity; but if he chooses to bind himself by a personal covenant he is liable at law fora breach thereof, although he describe himself as covenanting as trustee.
¶4*46Where the parties to a deed covenanted severally against their Own acts and incumbrances, aiul also to warrant and defend against their own acts, and those of all other persons, with an indemnity in lands of an equivalent value in case of eviction; it was held that these covenants were independent, and that it was unnecessary to allege in the declaration any eviction, or any demand or refusal to indemnify with other lands, but that it was sufficient to allege a prior incumbrance by the acts of the grantors, &c„ and that the action might be maintained on the first covenant in order to recover pecuniary damages.
¶5Where the grantors covenant generally against incumbrances made by them, it may be construed as extending to several, as well as joint incumbrances. No profert of a deed is necessary where it is stated only as inducement, and where the plaintiff is neither a party nor privy to it.
¶6An averment of an eviction under an elder title is not always necessary to sustain an action on a covenant against incurjibrances; if the grantee be unable to obtain possession iu consequence of. an existing possession or seisin by a person claiming and holding under an elder title, it is equivalent to an eviction, and a breach of the covenant,
¶7Error to the circuit court for the district of Kentucky.
¶8The capias ad respondendum issued in this case was as follows: “ The United States of America to the marshal of the Kentucky district, Greeting. You are hereby commanded to take John Craig, .Robert Johnson, and Elijah Craig, if they be found within your bailiwick, and them safely keep so that you have their bodies before the judge of our district court, at the capitol in Frankfort, on the first Monday in March next, to answer \Vrlliam Duvall, a citizen of the state of Virginia, of an action of covenant; damages fifty thousand dollars; and have then and there this writ. In testimony whereof, Harry Innes, Esq. judge of our said court, hath caused the *47seal thereof lo be hereunto affixed this 22d day tif January, 1804, and of our independence the 28th. Thomas Turnstall, C. D. C.”
¶9Whereupon the plaintiff declared against John Craig, Robert Johnson, and Elijah Craig, in covenant, for that whereas, on the 28th day of February, 1795, &c..the said John, and the said Robert and Elijah, astrustees to the said John, by their certain indenture of bargain and sale, &c., did grant, bargain, sell, alien, and confirm unto the said plaintiff, by the name of William Duvall, of the city of Richmond and state of Virginia, his heirs and assigns for ever, a certain tract of land lying and béing in the state of Kentucky, &c., together with the improvements, water courses, profits, and appurtenances whatsoever, belonging, or in any wise appertaining; and the reversion and remainder, and remainders and profits, thereof; and all the estate, right,'title, property, and demand of them, the said John Craig, and Robert Johnson, and Elijah Craig, trustees for the said John Craig, of, in, and to the same, to have and to hold the lands thereby conveyed with all and singular the premises, and every part and parcel thereof to the said William Duvall, his heirs and assigns for ever, to the only proper use. and behoof of him, the said William, his heirs and assigns for ever; and the said John Craig, and Robert Johnson, and Elijah Craig, trustees to the said John Craig, for themselves, their heirs, executors, and administrators, did covenant, promise, and agree, to and with the said William Duvall, his'heirs and assigns, that the premises before mentioned, *48then were, and for ever after should be, free of and from all former and other gifts, bargains, sales, dower, right and title of dower, judgments, executions, titles, troubles, charges, and incumbrances whatsoever done, or suffered to be done by them, the said John Craig, and Sarah his wife, and Robert Johnson, and Elijah Craig, trustees for the said John Craig, as by the said indenture will more at large appear. And the said William, in fact, saith, that the premises before mentioned were not, then and there, free of and from all former gifts, grants, bargains, sales, titles, troubles, charges, and incumbrances whatsoever done and suffered to be done by the said John Craig, and Sarah his wife, and Robert Johnson and Elijah Craig, trustees to the said John Craig. Bftt, on the contrary, the said John Craig and Robert Johnson, theretofore, to wit, on the 1 ith day of May, 1785, assigned the place and certificate of survey of said land to a certain John Hawkins Craig, by virtue of which said assignment, Patrick Henry, governor of the commonwealth of Virginia, granted the said land to said John Hawkins Craig, /and his heirs for ever, by letters patent, dated the 16th,day of September, 1785, and now here shown to tfie court, the date whereof is the day and year aforesaid, which said piatent to the said John Hawkins Craig, on the day and year first aforesaid, at the district aforesaid, was in full force and virtue, contrary to the covenant aforesaid, by reason of which said assignment, patent, and incumbrance, the said William hath been prevented from having and enjoying all or any part of the premises above men*49tionéd. And thereupon, the said William further saith, that the defendants aforesaid; although often requested, have not kept and performed their covenant aforesaid, &c. To which declaration there jvas a general demurrer, and joinder in demurrer, and a judgment thereupon in the circuit court for the defendants.
¶10The indenture referred to in the plaintiff’s declaration is in the following words: “ This indenture, made this 28th day of February, 1795, between John Craig, and Sarah, his wife, and Robert Johnson and Elijah Craig, trustees for the said' John Craig, all of the state of Kentucky, of the one part, and William Duvall of the city of Richmond, and state of Virginia, of the other part, witrifcsseth, that the said John Craig, for and in consideration of the sum of two thousand pounds, current money of Kentucky, to him, the said John Craig, in hand paid, the receipt whereof they do hereby acknowledge and'for ever acquit and discharge the said William Duvall, his heirs, executors, and administrators, have granted, bargained and sold, aliened and confirmed, and by these presents do grant, bargain and sell, alien and confirm, unto the said William Duvall, his heirs and assigns for ever, a certain tract of land lying and. being in the state of Kentucky, and now county of Scott, formerly Fayette, on the waters of the Ohio river, below the Big Bone lick creek, it being the same lands that the said John Craig covenanted by a writing obligatory, sealed with his seal, and dated the second day of December, 1788, to convey to Samuel M‘Craw, of the city of Rich*50mond, and which said writing the said Samuel M'Craw, on the back thereof, endorsed and transferred the same on the 2.7th day of February, 1789, to William Reynolds, and ,which is bounded as follows: beginning at a poplar and small ash corner, to William Bledsoe, about .thirty miles nearly a south course from the mouth of Licking; thence S„ 15, EJ. 520 poles with the said Bledsoe’s line, crossing four .branches to an ash and beech ; thence S. 75, W. 350 poles, to a hickory and' beech; thence S. 15, E. 400 poles, crossing a branch to a sugar tree and beech, near a branch; thence S. 7 5. W. 87 poles, to three beeches, corner to Robert Sanders; thence with his line S. 15 E. 600 poles, crossing two branches to a poplar and sugar tree; thence S. 60 poles to a sugar tree and beech; thence west 2171 poles, crossing five branches to a large black walnut; thence north 1580 poles, crossing a large creek and four branches to a sugar tree and ash ; thence E. 2006 poles, crossing five branches to the beginning; containing twenty thousand four hundred and forty acres, together with the improvements, water-courses, profits and appurtenances whatsoever to the same belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, and profits thereof, and all the estate, right* title, property, and demand, pf them, the said John Craig, and Sarah, his wife, and Robert Johnson, and Elijah Craig, trustees for the said John Craig, of, in, and to the same, to have and to hold the land hereby conveyed, with all and singular the premises arid every part and parcel -thereof, to the said Willjam Duvall, his heirs and *51assigns for ever, to the only proper use and behoof of him, the said William Duvall, his heirs and assigns for ever. And the said John Craig, and Sarah, his wife, and Robert Johnson and Elijah Craig, trustees to the said John Craig, for themselves, their heirs, executors, and administrators, do covenant, promise, and agree, to and with the said William Duvall, his heirs and assigns, by these presents, that the premises before mentioned now are, and for ever after shall be, free of and from all former and other gifts, grants, bargains, sales, dower, right, and titles of dower, judgments, executions, title, troubles, charges^ and incumbrances whatsoever done, or suffered to be done, by the said John Craig, and Sarah, his wife, and Robert Johnson and Elijah Craig, trustees for the said John Craig. And the said John Craig, and Sarah, his wife, and Robert Johnson, and Elijah Craig, trustees for the said John Cfaig, and their heirs, all and singular the premises hereby bargained and sold, with the appurtenances, unto the said William Duvall, his heirs and assigns, against him the said John Craig, and Sarah, his wife, and Robert Johnson, and Elijah Cráig, trustees for the said John Craig, and.their heirs, and all and every persons whatsoever, do and will warrant and for ever defend with this warranty, and no others to wit, that if the said land, or any part thereof, shall at any time be taken by a prior legal claim, or claims, that then and in. such case they, the said. John Craig, and Sarah, his wife, and Robert Johnson, and Elijah Craig, trustees for the said John Craig, and their heirs, shall make.good to the said William Duvall *52and his heirs, such part or parts so lost, by supplying to hi» the said William Duvall’s use, other lands in fee of equal quantity and quality, to be adjudged of by two or more honest, judicious, impartial men, mutually chosen by the parties for ascertaining the same. In witness whereof the said John Craig, and Sarah,. his wife, and Robert Johnson, and Elijah Craig, trustees for the said John Craig, have hereunto set their hands and seals, the date first in this indenture written.
¶11John Craig. (l.s.)
¶12Sarah Craig, (l s.)
¶13Robert Johnson,
¶14Trustee for John Craig, (l. s.).
¶15Elijah Craig.
¶16Trustee for John Craig, (i s.)
¶17Signed, sealed, and delivered in presence of
¶18Charles W. Byrd.
¶19T. S. Threshly.
¶20Thomas Corneal.
¶21Christopher Greenup.
¶22Robert Saunders.
¶23James Taylor.
¶24Jos. Wiggle worth.
¶25George Christy.”
¶26Mr. B. Hardin, for the plaintiff;
¶27made the following points: 1. That the variance between the writ and declaration, as to the description of the parties, *53was immaterial. Naming two of the defendants as trustees, is only Jlescriptio. personae, and could not alter the nature of the covenant. 2. Judgment was rightly rendered against the defendants in their individual capacity. 3. It was unnecessary to aver a demand' and refusal of other lands of equivalent value as an indemnity, this covenant not being sued upon; and the action might be maintained upon the first covenant against incumbrances by the parties to the deed. 4. ’That the breach alleged in the declaration was sufficient. 5. That it was unnecessary to make proferí of the assignment described in the breach.
¶28Mr. Talbot, contra.
¶291. The variance between the writ and declaration is a substantial variance, and is therefore available on general demurrer. The parties, Robert Johnson, and Elijah Craig, are not sued in their fiduciary character; but they are declared against as trustees to the said John, who is the cestui que trust, and could not be joined in an action at law with the trustees. They covenanted as trustees, and a court of equity is the proper forum in which they ought to be sued. 2. Having covenanted as trustees, no individual judgment could be rendered against them. 3. Supposing the trustees to be liable in their individual capacity, the two covenants in the deed are to be construed in connexion; the clause as to an indemnity with other lands of an equivalent value, ought to be applied to both; and the declaration is fatally defective in not alleging a demand and refusal to indemnify with other lands, 4. The cove*54nant, on which the breach is assigned, is against the joint and not the several incumbrances of the parties to the deed. The incumbrance alleged is the act of two of the parties only. 5. There is no profert of the assignment to John Hawkins Craig, by which the incumbrance was created; nor is it shown to have been made for a valuable consideration. 6. There is no averment of an eviction of the plaintiff under the assignment, which was absolutely necessary to sustain the action on the covenant against incumbrances.
¶30Mr. M. B. Hardin, in reply.
¶311. The variance between the writ and declaration could only be taken advantage of by a plea in abatement. 2. As between a trustee and the cestui que trust a court of chancery is the only jurisdiction; but trustees may bind themselves individually so as to be amenable at law. The present case is not that of a covenant binding the trustees, only as to the trust fund in their hands; but they covenant for themselves, their heirs, executors, &fc. The mere description as trustees, therefore, becomes immaterial. 3. The covenants are independent, and the action may be maintained to recover pecuniary damages, without alleging an eviction and demand of other lands of equivalent value. 4. Whére there is any doubt, a covenant is to be construed most strongly against the covenanters; and in a case of this nature, the law considers an act done by one or more of the covenanters as a breach of the covenant. 5. No profert of the assignment was necessary, because the action was not founded *55upon it, nor was the plaintiff a party or privy to it; and the omission of proferí was ground of special demurrer only.
¶33delivered the opinion of the court.
¶34Several points have been argued in this case, upon which the opinion of the court will be now pronounced. In the first place, it is stated, that a material variance exists between the writ and declaration, of which (being shown upon oyer) the court, upon a general demurrer to the declaration, are bound to take notice; and if so, it is fatal to the action. The supposed variance consists in this, that in the writ all the defendants are sued by their Christian and surnames only; whereas, in the declaration, the deed on which the action is founded is averred to be made by the defendant, John Craig, and by the other defendants, Robert Johnson and Elijah Craig, “ as trustees to the said John,” and the covenant on which the breach is assigned, is averred to be made by the said John Craig, and Robert Johnson and Elijah Craig, “ trustees to the said John.” The argument is, that the writ is founded upon a-persona! covenant, and the declaration upon a covenant inauterdroit, upon which no action lies at law; or if any lies, the writ must conform in its language to the truth of the case. It is perfectly clear, however, that the exception, even if a good one, cannot be taken advantage of upon general demurrer to the declaration, for such ¿ demurrer is in bar to the action; whereas variances between the writ and declaration are matters pleadable in abatement only. *56But there is .nothing in the exception itself. A trustee, merély as such,, is, in general, oply suable in equity. But if he chooses to bind hirhself by a personal covenant, he is liable at law for a breach thereof in the same manner ás other person · Case Law">any other person, although he describe himself as covenanting as trustee; for, in such case, the covenant binds bina personally,, and the addition of the words “as trustee” is but matter of description to show the character in which he acts for his own protection, and ip no degree affects the rights or remedies of the other party. The authorities are very elaborate on this subject. An agent or executor who cove» nants in his own name, and yet describes himself as agent or ex» cutor, is personally liable, for the obvious reason that the one has no principal to bind, and the other substitutes himself for his principal.a
¶35*57The reasoning upon this point disposes,.also, of the second made at the argument, viz., that the covenant being made by Robert Johnson and Elijah Craig, as trustees, no individual judgment can be rendered against them. It is plain that the judgment is right, and,, indeed, there could have been no other judgment rendered, for at law a judgment against a trustee in such special capacity is utterly unknown..
¶36Having answered these minor objections, we may now advance to the real controversies between the *58parties. It is contended, that the two covenants in the deed are so knit together, that they are to be construed in connexion, so that the clause as to an indemnity with other lands, in case of an eviction by a prior legal claim, is to be applied as a restriction to both covenants; and if so, then the action cannot be sustained, for the declaration does not allege any eviction, or any demand or refusal to indemnify with other lands. There is certainly considerable weight in the argument. It is not unreasonable to suppose that then the parties had provided a specific indemnity for a prior claim, they might mean to apply the same indemnity to all the other cases enumerated in the first covenant. But something more than the mere reasonableness of such a supposition must exist to authorize a court to adopt such a construction. The covenants stand distinct itt the deed,, and there is no incongruity or repugnancy in considering them as independent of each other. The first covenant being only against the acts and incumbrances under the parties to the deed, which, they could not but know, they might be willing to become responsible to secure its performance by a pecuniary indemnity; the second including a warranty against the prior claims of strangers also, of which the parties might be ignorant, they might well stipulate for an indemnity only in lands of an equivalent value. The case ought to be a very strong one, which should authorize a court to create, by implication, a restriction which the order of the language does not necessarily import or justify. It ought to be one in which no judicial doubt could *59exist,of the real intension of the parties to create such a restriction. It cannot be pronounced that such is the present case; and this objection to the declaration cannot, therefore, be sustained..
¶37The remaining objections turn upon the sufficiency of the breach alleged in the declaration. It is contended, that the covenant on which the ’breach is assigned is against the joint, and not the several acts and incumbrances of the parties to the deed, and that, therefore, the breach, which states an assignment by John Craig and Robert Johnson only, is wholly insufficient. It is certainly true that, in terms, the covenant is against the acts and incumbrances of all the parties, and the words “ every of them” are not found in the deed. Some of the incumbrances, however, within the contemplation of the parties are not of a nature to be jointly created; as, for instance, the incumbrance of dower and title of dower. This very strongly shows that it was the intention of the parties to embrace in the cove-. nant several, as well as joint acts and incumbrances. There is also a reference in the premises of the deed to a covenant for a conveyance previously made by John Craig to Samuel M‘Craw, against which it must have'intended to secure the grantees; and if so, it fortifies the construction already stated. If, therefore, the point were of a new impression, it would be difficult to sustain the reasoning, which would limit the covenant to the joint acts of all the' grantors; and there is no authority to support it. On the contrary, Meriton’s case, though stated with some difference by the several reporters; seems to *60us completely te sustain the position that a covenant of this nature ought to be construed as including several, as well as joint incumbrances, and has Certainty been so understood by very learned abridgers. Meriton's Case. Noy, 86. S. C. Popham, 200. S. C. Latch, 161. Bac. Abr. Covenant, 77. Com. Dig. Condition,(E.) This objection, therefore, is overruled.b
¶38*61Another exception is, that there is no profert of the assignment described in the: breach, nor is it shown to have been made for a valuable consideration. Various answers have been given at the bar to this exception; and without deciding on others, it is a sufficient answer that the plain tiffis neither a party nor privy to the assignment, nor conusant, of the consideration upon which it was made, and therefore is not bound to make a profert of it, or show the consideration upon which it was made.
¶39The last exception is, that the breach does not set. forth any entry or eviction of the plaintiff under the assignment and patent to John Hawkins Craig. Assuming that an averment of an entry and eviction un der an elder title be in general necessary, to sustain an. action on a covenant against incumbrances, (on which we give no opinion,) it is clear that it cannot be always necessary. If the grantee be unable to obtain possession in consequence of an existing possession or seisin by a person claiming and holding under an-elder title, this would certainly be equivalent to *62an eviction and a breach of the covenant. In the case at bar the breaeh is assigned in a very inartificial and lax manner; but it is expressly averred, that the assignment and patent tef John Hawkins CSfaig was a prior conveyance, which was still in full force and virtue, “ by reason of which said assignment, patent, and incumbrance, the said William (the plaintiff) hath been prevented from having and enjoying all or any part of the premises above mentioned.” We are all of opinion, that upon general demurrer, this must be taken as an averment, that the possession of the premises was legally withheld from the plaintiff by the parties in possession, under the prior title thus set up.c
¶40Judgment reversed.