¶1delivered the opinion of the court.
¶2This is an action of covenant to recover damages for alleged breach of a special warranty of title brought by William H. Marbury and M. Dulaney Ball, substituted trustees, &c., as plaintiffs against Joseph Thornton, defendant.
¶3The declaration avers that on the 17th day of August, 1869, Thornton and wife, and William H. Dulaney, commissioner of sale, sold and conveyed to William H. Davis, who took immediate possession thereof, a certain tract of land situate in the county of Fairfax, for the sum of $150,000. That on the same day Davis conveyed the same land to William H. Dulaney in trust to secure the negotiable notes given for said purchase price; that a portion of said notes, amounting to $75,000, were, before they became due, endorsed and transferred by the defendant to different parties for value and without notice of any defect in the security therefor, and no part of said notes have been paid; that afterwards, Dulaney having died, the *704plaintiffs were, by order of court, substituted as trustees in Ms stead; that before and at the time of the execution of these deeds, one Joseph D. Thorpe had a lien or incumbrance on the said premises for $29,620.81, with interest.
¶4At the trial the defendant, Thornton, craved oyer of the said deeds and demurred to the declaration; when the court sustained the demurrer and gave judgment for the defendant. And it is this action of the court we are now called upon to review.
¶5That the declaration is not sufficient in law seems clear. It is well setted that the covenant of warranty runs with the land for the protection of the owner, in whose time the breach occurs and that it may be enforced by the covenantee, and his representatives and assigns, but it is equally well settled that to constitute a breach of such a covenant there must be an eviction, or the plaintiff must be prevented from taking possession of the premises by another in possession under a better title existing at the time of the sale and deed. Dickinson v. Hoomes, 8 Gratt. 396; Sheffey v. Gardiner, 79 Va. 313; Grist v. Hodges, 3 Dev. N. C. 200; Parks v. Bates, 12 Vt. 381.
¶6In this declaration there is no averment that the trustees were kept out of possession of the premises by any person or persons in possession under a paramount title, or that they were evicted by judgment of eviction followed by ouster. And the mere statement in the declaration, “that in consequence and in pursuance thereof (meaning in consequence and in pursuance of Thorpe’s lien and incumbrance) the said plaintiffs have been disturbed in and evicted from the possession and enjoyment of said tract of land “cannot be regarded either as an averment that the trustees were ever in possession of the said tract of land, or that they have been evicted therefrom. Indeed, when we look to the deed of trust from which these trustees derive their powers, we find that it was only contem*705plated that they should have power to sell and convey to the purchasers upon default in the payment of the- notes.
¶7As suggested by the counsel for the defendant in error, it is plain that the declaration was drawn upon the idea that the mere existence of Thorpe’s prior lien and incumbrance was of itself a breach of the covenant of warranty and was of itself equivalent to an eviction. In point of fact, however, these trustees had no right to possession of the premises at the time of the execution of the deed of trust, for by the terms of the deed Davis was expressly left in possession until default should be made in the payment of the notes, which could not happen in less than a year from the date of the execution of the deed. Not being entitled to the possession thereof, it would seem impossible that they should claim to have been kept out of it by any one holding possession under a paramount title.
¶8A covenant of warranty, however, can never be treated as a covenant against mere incumbrances. Grist v. Hodges, supra; Findlay v. Toncray, 2 Rob. 379. But if a covenant of warranty could be treated merely as a covenant against incumbrances, the incumbrance of Thorpe’s being prior to the deed from Thornton it was broken the instant Thornton’s deed was executed, and thus became a mere right of action not assignable at law and which could not pass by the deed of trust from Davis to Marbury and Ball. 2 Wait’s Actions and Defences, 1380; Dickinson v. Hoomes, supra.
¶9In any respect in which we may view the case, it seems clear that Davis was the only party who could sue upon the covenant, even if Thorpe’s incumbrance could be regarded as a breach of such a covenant.
¶10The judgment of the circuit court of Alexandria is right and must be affirmed.
¶11Judgment aeeirmed.