The proceedings will be conclusive against the covenantor in this action: Cooper v. Watson, 10 Id. 202.

18. Possession.-Where the covenantee is held out of possession by one in actual possession under a paramount title, the covenant is broken: Whity v. Hightower, 12 Smed. & M. 478.

19. Remedy.-If a party takes a conveyance without covenants, he is without remedy in case of failure of title; and if he takes a conveyance with covenants, his remedy upon failure of title is confined to them: Peabody v. Phelps, 9 Cal. 213.

20. Right of Way.-The use of a right of way by the party entitled to it, is an eviction of the owner of the servient estate, within a covenant of warranty against "all lawful claims," for which the latter may sue as assignee of the covenantee: Russ v. Steele, 40 Vt.310.

21.

Special Damages-Allegation of. That by reason thereof the plaintiff has not only lost said premises, but also the sum of ....... dollars, by him laid out and expended in and upon the said premises, in repairing and improving the same, and also the sum of .......... dollars, costs and charges sustained by the said A. B., in prosecuting his action for the recovery thereof, and the sum of ..... dollars, for his own costs, charges, and counsel fees in defending said action.

[TITLE.]

No. 257.

ii. The Same-Another Form.

The plaintiff complains, and alleges:

I. That on the .... day of

187., at

the defendant, by his deed of that date, duly executed, in consideration of

dollars, sold and conveyed in

fee simple, to the plaintiff, certain land [describe it].

II. That the defendant, by the same deed, covenanted as follows [copy the covenant].

III. That the defendant had not, at the time of the execution of said deed, a good and sufficient title to said premises; and by reason thereof, on the .... day of ...

187, at .....

the plaintiff was ousted and dispossessed of the said premises by due course of law.

[Or, III. That one G. H., at the time of the execution of the said deed and from thence, had lawful right and paramount title to the said premises, and by virtue thereof, after the execution of said deed, on the .... day of

187., entered upon the possession thereof, and ousted and dispossessed by due process of law, and kept, and still keeps, the plaintiff from the possession of the same. That the plaintiff has also been compelled to pay the costs and

charges sustained by the said G. H. in prosecuting a certain action in the .......... Court, in ............. County,

for the recovery of said premises, which amounted to .... dollars, and to pay out the additional sum of ........ dollars in endeavoring to defend such action.

[Demand of Judgment.]

No. 258.

iii. By Assignee of Grantee against Previous Grantor.

[TITLE]

The plaintiff complains, and alleges :

I. [Allege sale to one C. D.]

II. [Allege and set out copy of covenant.]

III. That the said C. D. afterwards, on the .... day of

187., at

by deed duly executed, in

consideration of the sum of dollars, conveyed the said premises to one E. F., his heirs and assigns; and the said E. F. afterwards, on the .... day of ............. 187., at ........., by his deed of that date, duly executed, in consideration of the sum of dollars, conveyed

the same premises to the plaintiff.

IV. That the plaintiff afterwards, on the .... day of.........., 187., at .. entered into and was possessed of said

premises.

V. That the defendant had not at the time of the execution of his said deed, nor has he since had a good and sufficient title to the said premises; by reason whereof, the plaintiff was afterwards, on the .... day of

......., 187., ousted and dispossessed of the said premises by due course of law.

[Demand of Judgment.]

No. 259.

iv. By Heirs of Covenantee, against Previous Grantor.

[TITLE.]

The plaintiff complains, and alleges:

I. [Allege sale as in preceding forms.]

II. [Allege and set out copy of covenant.]

III. That the said C. D., afterwards, and on the same day, entered into and was possessed of said premises, and tate therein, descended to the plaintiffs, as children and

....

afterwards, on the .... day of .... 187., at said C. D. died, whereupon the said premises, and his esco-heirs of the said C. D., deceased; and that they afterwards, on the same day, entered into and were possessed of said premises, until ousted and dispossessed, as hereinafter mentioned.

[Here set forth the breach, etc., as in the preceding forms.]

[Demand of Judgment.]

No. 260.

v. By Devisee of Covenantee, against Previous Grantor.

[TITLE.]

The plaintiff complains, and alleges:

I and II. [Allege sale and covenant.]

III. That the said E. F., afterwards, and on the same day, entered into and was possessed of said premises; and afterwards, on the..... day of........, 187., at.... made his last will and testament, in writing, and thereby, amongst other things, devised the said premises to the plaintiff; and afterwards, on the...... day of......, 187., the said E. F. died, leaving such will.

at.

IV. That on the......day of......, 187., the said will was proved and admitted to probate in the Probate Court of, etc., and by order of said court, letters testamentary were issued. [If the property is situated in a county other than the one where the will was admitted to probate, add: That afterwards, on the.......day of......., 187., by an order of the Probate Court of.... ....county (where the premises are situated), an authenticated copy of said will, from the record aforesaid, with a copy of said order of probate annexed thereto, was filed of record in the Probate Court of said county of........(where premises lie), and duly recorded.]

V. That thereupon the plaintiff entered into possession of the said premises, and was possessed thereof until ousted and dispossessed as hereinafter mentioned. [Set forth breach, etc., as in preceding forms.]

[Demand of Judgment.]

The plaintiff complains, and alleges:

I. That on the. . . . . . . . day of. . . . . . . ., .., 187., at. the defendant warranted a certain farm in....... township, ...county, State of........, to contain . . . . . . . . acres of land, and thereby induced the plaintiff to purchase the same from him, and to pay him. ....... dollars therefor.

II. That the said farm contained only. . . . . . . . acres, instead of... ...... acres, the quantity sold to plaintiff by defendant.

III. That plaintiff was damaged thereby in the amount of........ dollars.

[Demand of Judgment.]

No. 262.

vii. On Covenant against Incumbrances on Real Property.

[TITLE.]

The plaintiff complains, and alleges:
I. That on the... . . . . . day of...........

187., at.

at....

the defendant, in consideration of........dollars to him paid, granted to the plaintiff, by deed, in fee-simple, a farm in the town of. county of.... [or otherwise briefly designate the property].

..,

.......

II. That said deed contained a covenant on the part of the defendant, of which the following is a copy [copy of covenant].

III. That at the time of the making and delivery of said deed the premises were not free from all incumbrance, but on the contrary, the defendant before that time, on the

.....day of........, 187., at ..... by deed in the nature of a mortgage, duly executed, had mortgaged the said premises to one R. S., to secure the payment of...... dollars, with interest.

........

IV. And for a further breach, the plaintiff alleges, that on the.... day of.... 187., in the......court of the... judicial district, of. . . . . . . . county, in this State, judgment was rendered against the defendant for the sum of........ dollars, in an action in which the said [incumbrancer] was plaintiff, and the defendant herein was de

........

fendant, which judgment was on the...... day of. of... 187., docketed in said county of [where premises are situated], and which judgment, at the time of the execution and delivery of the deed in the nature of a mortgage, remained unpaid and unsatisfied of record.

V. And for a further breach, the plaintiff alleges, that at the time of the execution and delivery of said deed the premises were subject to a tax theretofore duly assessed, charged, and levied upon the said premises by the said city of.. .., and the officers thereof, of the sum of .dollars, and which tax was then remaining due and unpaid, and was at the time of the delivery of said deed a lien and incumbrance by law upon the said premises. VI. That by reason thereof, the plaintiff paid, on the ..day of..... 187., the sum of........ dollars in extinguishing the [here state what, whether the judgment, lien, tax, or other incumbrance, or all of them] aforesaid, to his damage........ dollars.

[Demand of Judgment.]

22. Assignment of Breach.-A breach of covenant is sufficiently assigned by negativing the words of the covenant: McGeehan v. McLaughlin, 1 Hall, 33. If the special facts to negative a covenant are necessarily included in the general averment of the breach, a distinct and substantive averment of them is not necessary: Randall v. C. & D. Canal Co., 1 Harr. 151; 3 Bibb, 330. A general covenant against incumbrances is broken by the existence of an incumbrance at the making of the deed. The breach must set out the particular incumbrance relied on: Shelton v. Pease, 10 Mo. 473; Juliand v. Burgott, 11 Johns. 6; Thomas v. Van Ness, 4 Wend. 549; compare People v. Russell, Id. 570.

23. Condition Precedent.--Where a deed contains a covenant, that in case the grantees shall pay a certain sum of money before a certain day, "then this instrument is to take effect as a full and complete conveyance in fee of all, etc., take the estate belonging to the covenantor," etc., the payment of the purchase money was a condition precedent to vesting the estate: Mesick v. Sunderland, 6 Cal. 297.

24. Covenant in Mortgage.--If the mortgagor covenants to pay and discharge all legal mortgages and incumbrances, the covenant will make the mortgagor personally liable for the sum due and secured by an executory contract, for a mortgage not under seal or recorded, if the mortgagor had actual notice of it, and the mortgage will become security for the performance of the covenant: Racouillat v. Sansevain, 32 Cal. 376. It does not put the purchaser from the mortgagor upon any inquiry as to any mortgages or incumbrances not of record: Racouillat v. Rene, 32 Cal. 450.

25. Damages Sustained.—A party having been defeated in a suit against him for damages for having interfered with an easement on his laud,