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had entered into a contract to sell the land to Mrs. Hambley, who represented Mr. Whitney. On May 5, 1903, Mr. Henderson, who had gone to Troy to investigate the title "in behalf of Richard Eames and Hambley," offered to pay defendant "all the taxes, interest, cost and penalties," which offer was declined. The same offer was made to the sheriff and declined. A few days after Mr. Henderson's visit to Troy plaintiff went there and, after some negotiation with defendant and his attorneys, agreed to pay him two thousand three hundred dollars and take the deed. Pursuant to this agreement, the deed containing the covenant was delivered and the money paid on May 7, 1903. Plaintiff, before taking the deed, offered to pay defendant and the sheriff the taxes, etc., which offer was declined. On May 9, 1903, the plaintiff and his wife, Mrs. Elizabeth Eames, conveyed the land to Whitney for five thousand dollars, and he went into possession and has remained therein, unmolested. This action was brought March 4, 1904. If plaintiff should recover, as he seeks to do, the purchase money paid defendant, he should be required to 8 reconvey to him such title or interest as he acquired by the deed. This he cannot do, because, assuming his contention correct, that the title was not devested out of Mrs. Eames by the tax deed, he has joined with her in conveying his rights to Whitney. While it is true that usually the purchase money is the measure of damages for breach of covenant of seisin, it is equally true that, if the covenantee perfect his title for a less amount, he will recover only the amount paid by him therefor. In this case he and his wife sold to Whitney for five thousand dollars. It does not appear that he paid Mrs. Eames any sum whatever for her interest or title, or whether the whole of the purchase money went to him. It does appear that his contract was to sell the land to Hambley, representing Whitney, for five thousand dollars, and that by reason of acquiring defendant's title he was enabled to carry out his contract. It is certain that he and Mrs. Eames have conveyed to Whitney a perfect title, and that plaintiff cannot put defendant back in the position which he occupied when he made the covenant. This he should be able to do: Rawle on Covenants, sec. 184. Is it not clear that, if plaintiff should recover the purchase money upon the theory that defendant had no title, he should reconvey to the defendant? In Stinson v. Sumner, 9 Mass. 143, 6 Am. Dec. 49, Parker, J, says: "It would certainly be manifestly against the principles of justice that a grantee should recover either his purchase money or the value of the land against the grantor upon an

alleged breach of covenant that nothing passed by the deed, and that he should be considered the owner of the land under the very deed which he had alleged to be inoperative." The plaintiff has conveyed the land to Whitney for an amount more than double the purchase money paid by him to defendant. The fact that his wife joined in the deed, from this point of view, does not affect the question. He cannot restore to defendant the title which he got from him. How, then, can he call upon him to restore the purchase money? It may be, assuming that there was a breach of the covenant, that he could recover such sum as he was required to pay out to perfect his title. In Farmers' Bank v. Glenn, 68 N. C. 35, it is said: "If there be an outstanding paramount title, which the covenantee purchases, he is not entitled to recover the whole of the purchase money, with interest, but only the amount paid to perfect the title, with interest from date of payment. In other words, when the loss has been less than the purchase money and interest, the plaintiff can recover only for the actual injury sustained." The language of the court in that case is applicable here. "The plaintiff does not stand in a very graceful attitude before the court when it seeks to recover the purchase money after its title to the land has been perfected and when it has by a deed in trust conveyed the same land to secure its debts. The bank is seeking to have the land and the purchase money. To allow it to do so would be grossly inequitable." The purpose of the covenant is indemnity, not speculation. The defendant, in addition to the defenses to which we have adverted, urges us to reverse the former rulings of the court that a covenant of seisin does not run with the land. He cites a number of cases in which it is held that the breach is continuing and the right to sue passes with the title and may be prosecuted whenever the paramount title is asserted to the disturbance of the possession of the grantee under the deed containing the covenant. From this position defendant concludes that Whitney is the owner of the covenant and the real party in interest, who alone can sue. It is true, as contended by the learned counsel, that the law has been so held by a number of highly respectable courts. The other view has always been held by this court, and we are not disposed to reverse these decisions. Mr. Rawle, in his excellent work on Covenants, fifth edition, 205, discusses the question, reviews the authorities and concludes that the weight of authority is with the opinion of this court. We noted the cases upon the subject in Eames v. Armstrong, 142 N.

C. 506, 55 S. E. 405. We are of the opinion that his honor's ruling upon the admissibility of the evidence offered by plaintiff for the purpose of attacking the 10 sheriff's deed was correct. This renders it unnecessary to discuss a number of the plaintiff's exceptions. The constitutionality of our revenue and machinery acts is not presented.

The judgment must be affirmed.

No error.

COVENANTS OF SEISIN.*

I. Nature and Definition of Covenant.

a. Definition of Covenant, 443.

b. What Satisfies Covenant, 445.

c. Form in Which Covenant is Expressed, 446.

d. Whether Implied in Bargain and Sale Deed, 446.

e. Whether Synonymous with Covenant of Right to Convey, 446.

II. Breach of Covenant.

a. Rule that Covenant is Broken, if at All, as Soon as Made, 447.

b. Rule that Covenant is Personal and does not Run with Land, 448.

c. Rule that on Breach the Covenant Becomes a Nonassignable Chose, 449.

d. Statutory Modification of this Rule, 450.

e. Doctrine of Continuous Breach, 450.

f. What Constitutes a Breach in General, 451.

g. Existence of Encumbrance, 453.

h. Existence of Dower Right, 453.

i. Existence of Easement, 454.

j. Misdescription of Property, 455.

III. Actions for Breach of Covenant. a. Persons Who may Sue, 455. b. Persons Liable to Suit, 457.

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c. Measure of Damages.

1. General Rule, 457.

2. Nominal Damages, 461.

3. Damages for Partial Breach, 463.

4. Damages When Grantee Buys Outstanding Title, 464. d. Evidence.

1. Burden of Proof, 464.

2. Parol Evidence as to Damages, 465.

I. Nature and Definition of Covenant.

Definition of Covenant.-The covenant of seisin has been defined in England to be "an assurance that the grantor has the very estate in quantity and quality which he purports to convey": Howelle v. Richards, 11 East, 633, 11 R. R. 287. The words, from having been originally used as synonymous with possession, came to be looked upon less as one of the parts of a title than as synonymous with title itself; and the covenant that one was seised in fee was regarded as

REFERENCES TO MONOGRAPHIC NOTES.

Real and personal covenants: 47 Am. Dec. 569-577.

Covenant running with the land: 82 Am. St. Rep. 664; 56 Am. Rep. 151-167. Covenants restricting the use of land: 21 Am. St. Rep. 484-508.

What damages recoverable in breach of covenant of seisin: 99 Am. Dec. 73. Implied covenants for title other than statutory: 32 Am. Dec. 353.

a covenant for the title, in contradistinction to the covenant for quiet enjoyment, which was called a covenant for possession. The English definition of this covenant has been adopted by a number of the American states: Lockwood v. Sturdevant, 6 Conn. 373; Brandt v. Foster, 5 Iowa, 287; Pecare v. Chonteau's Admr., 13 Mo. 527; Eagan v. Martin, 71 Mo. App. 60; Real v. Hollister, 20 Neb. 112, 29 N. W. 189; De Long v. Spring Lake & Sea Girt Co., 65 N. J. L. 1, 47 Atl. 491; Wetzell v. Richcreek, 53 Ohio St. 62, 40 N. E. 1004; Kincaid v. Brittain, 5 Sneed (Tenn.), 119.

The weight of authority in the United States inclines to the rule that a covenant that one is seised, or lawfully seised, means seised of an indefeasible estate; and the covenant of seisin is regarded as a covenant for title, the word being used as synonymous with right: Martin v. Baker, 5 Blackf. (Ind.) 232; Fitzhugh v. Croghan, 2 J. J. Marsh. (25 Ky.) 429, 19 Am. Dec. 139; Greenby v. Wilcox, 2 Johns. (N. Y.) 1, 3 Am. Dec. 379; Woods v. North, 6 Humph. (Tenn.) 309, 44 Am. Dec. 312; Hastings v. Webber, 2 Vt. 407; Pollard v. Dwight, 4 Cranch, 421, 2 L. ed. 666; Thomas v. Perry, Pet. C. C. 49, Fed. Cas. No. 13,908; 4 Kent's Commentaries, p. 472.

The supreme court of Ohio, in Wetzell v. Richcreek, 53 Ohio St. 62, 40 N. E. 1004, has given an exhaustive definition of the covenant of seisin, adopting the English definition and extending and enlarging upon it as follows: "A covenant of seisin is defined to be 'an assurance to the purchaser that the grantor has the very estate in quantity and quality which he purports to convey,' and extends not only to land itself, but also to whatever is properly appurtenant to and passes by the conveyance of the land; and, though the covenant is usually found in conveyances of the fee, it is appropriate in leases and assignments of them. Indeed, it seems well settled that in leases the covenant, or its equivalent, will be implied, unless the terms of the lease exclude the implication. It is said in Rawle on Covenants for Title, section 272: 'With respect to estates less than freehold, covenants for title were from the earliest times implied, not only from the words of leasing, such as demisi, concessi, or the like, but even from the relation of landlord and tenant, and such is the law at the present day, unless where, as in some of the United States, it has been altered by legislation.' And in section 273 that author says: "The covenants for title thus implied from the words of leasing were and are two: First, a covenant that the lessor has power to demise; and, secondly, a covenant for quiet enjoyment,—and both of these covenants are, of course, as are all common-law implied covenants, general and unlimited.' It is held by some authorities that no covenants are implied in the assignment of a lease: Waldo v. Hall, 14 Mass. 486; Blair v. Rankin, 11 Mo. 440. Other authorities, however, maintain the contrary doctrine. Thus, in Sonter v. Drake, 5 Barn. & Adol. 992-1002, it is said by Lord Denman that, 'unless there be a stipula tion to the contrary, there is in every contract for the sale of a lease an implied undertaking to make out the lessor's title to demise, as well as that of the vendor to the lease itself, which implied under. taking is available at law as well as in equity.' And see Bensel v.

Gray, 38 N. Y. Super. Ct. Rep. 447. This would seem to be the better rule, because it can hardly be supposed to be the intention of one party to purchase, or of the other to sell, the mere instrument of lease, without any beneficial interest under it, but rather, that the subject of the purchase and sale is the right to enjoy the term purported to be demised, and all the benefits which it stipulates to confer on the lessee": Wetzell v. Richcreek, 53 Ohio St. 62, 40 N. E. 1004.

The covenant of seisin extends only to guarantee the bargainee against any title existing in a third person, and which might defeat the estate granted: Fitch v. Baldwin, 17 Johns. (N. Y.) 161. In Illinois, in the case of Furness v. Williams, 11 Ill. 229, Treat, C. J., said: "It is attempted on the part of defendant to establish a breach of the covenant by proving that he was himself seised, instead of his grantor. The law does not allow this to be done. The covenant of seisin extends only to a title existing in a third person. It does not embrace a title that may be already in the grantee. The grantee is estopped from setting up the title previously acquired against his vendor"; citing Tiedeman on Real Property, sec. 851; Rawle on Covenants for Title, 431; Jones on Real Property, 444; 11 Am. & Eng. Ency. of Law, 442; Horrigan v. Rice, 39 Minn. 49, 38 N. W. 765; Eames v. Armstrong, 146 N. C. 1, ante, p. 436, 59 S. E. 165. The purpose of the covenant is indemnity, not speculation: Eames v. Armstrong, 146 N. C. 1, ante, p. 436, 59 S. E. 165.

The Missouri court of appeals follows the English definition of this covenant, and gives a general illustration of what would constitute a breach of it, as follows: "The covenant of seisin is defined to be an assurance that the covenantor has the very estate, both in quantity and quality, which he professes to convey; therefore, any outstanding right or title which diminishes the quality or quantity of the technical seisin will be a breach of the covenant. In such case it is broken as soon as made and thereby an immediate action accrues": Eagan v. Martin, 71 Mo. App. 60.

b. What Satisfies Covenant.-The title in the covenantor, to support the covenant, must be a complete legal title,-i. e., the juris et sesinae conjunctio, the title and possession united. This is the technical and legal import of the terms, "seised of legal title." Seisin means, "ex vi termini" the whole legal title. Therefore, the covenant is supported if the covenantor has the possession, or the right of possession, and the right, or legal title: Fitzhugh v. Croghan, 2 J. J. Marsh. (25 Ky.) 429, 19 Am. Dec. 139. See, also, the preceding subdivision, and subdivision II, post.

A different and conflicting view to the above is held in Massachusetts, Maine, and, to a qualified extent, in Ohio. In these states a peculiar construction has been adopted, by deciding that the covenant of seisin does not exact an indefeasible estate, but is answered by the transfer of an actual seisin-even though tortious— if it be a seisin under color of title: Marston v. Hobbs, 2 Mass. 433, 3 Am. Dec. 601; Bearce v. Jackson, 4 Mass. 408; Cushman v. Blan

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