in possession under the deed, the damages should be less than the consideration. (*) In Illinois the recovery rests on a peculiar principle. The purchaser of land can, on discovering that the vendor has not a good right to convey (as that he has an estate pour autre vie), and on tendering a reconveyance, recover the purchase-money and interest, together with the amount of taxes paid, with deductions for all rents and profits which have been or could have been received, that is, the parties are put in the same position as if no sale had been made.(*) Here again all the ordinary rules are violated. The object of compensation is not to put the parties in the same position as if no contract had been made, but to put them as nearly as possible in the situation they would have occupied had it been performed. In a Massachusetts case, () the plaintiff had agreed to purchase from a third party certain land, for which he was to give a policy of insurance and his note for $450. The third party not having the title, agreed with the defendant to purchase from him for $475. The defendant made out a deed to the plaintiff, with covenants of seizin and right to convey, receiving the plaintiff's note for $450 and $25 from the third party. It was held that the plaintiff could, at his option, recover either the fair market value of the land at the time of the sale, or the consideration actually received by the grantee. The plaintiff accepted his note, and $25 (the fair market value being about $575), Wells, J., saying: "To the extent of what he (the defendant) actually received, the plaintiff doubtless might hold him liable upon his covenant of seizin and title. But otherwise, the measure of (*) Hunt v. Middlesworth, 44 Mich. 448. his liability would be the actual value of the land at the time of the conveyance.' COVENANTS AGAINST INCUMBRANCES. § 967. General principles.-* We proceed now to consider the rule in regard to the covenant against incumbrances. And on this subject the Supreme Court of Massachusetts has used this general language, that the defendant is to make good his warranty; that is, he is to pay a sum of money which will put the plaintiff in as good a state as if he had kept his covenant.' The cases arising under the covenant against incumbrances resolve themselves into three general heads: First, where the incumbrance consists of a mortgage or other debt which is already due and which the plaintiff has paid off. Second, where the plaintiff has not discharged the incumbrance, though it might have been done. Third, where the incumbrance consists of a mortgage or lease not expired, or servitude of any description, which the plaintiff cannot discharge. In Massachusetts, the general rule has been laid down as follows: "If the covenantee has fairly extinguished the incumbrances, he ought to recover the expenses necessarily incurred in doing it. If they remain and consist of mortgages, attachments, and such liens on the estate conveyed as do not interefere with the enjoyment of it by the covenantee, he can recover only nominal damages. But if they are of a permanent nature, such as the covenantee cannot remove, he should recover a just compensation for the real injury resulting from their continuance." And this seems the law as generally received. So in New York' it was held, 1 Thayer v. Clemence, 22 Pick. 490. Harlow v. Thomas, 15 Pick. 66, 69; Batchelder v. Sturgis, 3 Cush. 201. 3 Delavergne v. Norris, 7 Johns. 358. that if the plaintiff had actually extinguished the incumbrance, he was entitled to recover the amount so paid; but if not extinguished, that then he could only recover nominal damages; and the doctrine has been uniformly adhered to in that State.' And, on the same principle, in regard to the mode in which the breach of this covenant must be set out, it is held in New York not to be sufficient to aver that the premises are not unincumbered, but that the plaintiff must allege the extinguishment of the incumbrance. So in Massachusetts, in an early case, Parsons, C. J., said: "A purchaser from one seized is not obliged to wait in painful suspense until he be evicted, before he can obtain an adequate remedy; but as soon as he can extinguish the incumbrance, he may call on his grantor for an indemnity." So held again in the same State, that the damages in a suit on the covenant against incumbrances are merely nominal, if the plaintiff has paid nothing for their discharge.'** § 968. Incumbrance removable.-The covenant against incumbrances like those of seizin and right to convey is broken when the deed is delivered, if at that time there are any incumbrances. (*) Where the covenant is broken by the existence of an incumbrance, such as a mortgage, which may be removed by the payment of money, the measure of damages is the amount of money necessary to remove it. And so where a mortgage has been foreclosed, but the time for redemption has not run out, the cost of redeeming from it is the measure of damages. () In an action 1 Hall v. Dean, 13 Johns. 105; Stanard v. Eldridge, 16 Johns. 254. * Deforest v. Leete, 16 Johns. 122. 3 Prescott v. Truman, 4 Mass. 627; Wyman v. Ballard 12 Mass. 303; Tufts v. Adams, 8 Pick. 547. (*) Harrington v. Murphy, 109 Mass. 299; Smith v. Lloyd, 29 Mich. 382; Post v. Campau, 42 Mich. 90; Stambaugh v. Smith, 23 Oh. St. 584. () Tufts v. Adams, 8 Pick. 547. upon a covenant of warranty and quiet enjoyment, where the right of a prior mortgagee in possession existed at the time of the conveyance of the premises to the plaintiff, and the mortgagee could and did, by virtue of that right, resist the grantee's claim to the possession, it was held, by the Supreme Court of New York, at Special Term, that the covenant of warranty was broken, and that the measure of the grantee's damages was the amount due on the mortgage, with interest. (*) In an action upon this covenant, the defendant may show that at the time of conveyance money was left in the plaintiff's hands to discharge the incumbrance. (*) There may be successive actions by the grantee as successive injuries occur as a consequence of the incumbrance. (©) § 969. Total eviction.-In the case of total eviction by reason of the incumbrance resulting in acquisition of a valid title in fee by the incumbrancer, the plaintiff recovers, in New York,' the consideration named in his deed, with interest, and also the costs of the proceeding in which he was evicted;() or, in Massachusetts,' (*) the value of the land, with interest from the time of the eviction. If the incumbrance consists in an unexpired lease the measure of damages is the value of the use of the premises for the time during which grantee is deprived of their 'Barrett v. Porter, 14 Mass. 143. 1 Waldo v. Long, 7 Johns. 173. () Winslow v. McCall, 32 Barb. 241. (*) Blood v. Wilkins, 43 Ia. 565; Wachendorf v. Lancaster, 66 Ia. 458. (c) Post v. Campau, 42 Mich. 90. () Accord. Willets v. Burgess, 34 Ill. 494; Burton v. Reeds, 20 Ind. 87; Willson v. Willson, 25 N. H. 229, 235 (semble); Stewart v. Drake, 9 N. J. L. 139; Dimmick v. Lockwood, 10 Wend. 142; Greene v. Tallman, 20 N. Y. 191; Patterson v. Stewart, 6 W. & S. 527. (*) But where there has been no eviction, only the consideration and interest: Chapel v. Bull, 17 Mass. 213; Jenkins v. Hopkins, 8 Pick. 346. * use.(*) So in New York, where the plaintiff had been ousted of a portion of the premises by a third party, who had a superior title, but for a term of years only, it was held by the Supreme Court that the measure of damages was not the consideration money of the land of which the plaintiff was dispossessed and interest, but the annual value thereof, or the interest of the consideration money paid for the land for the period of the term; and that the costs and counsel fees of the plaintiff's defense to the termor's suit were all properly included.1 ** § 970. Eviction from part of land.-If the plaintiff's possession has been interfered with on account of the incumbrance, he recovers the amount of his injury, not exceeding the consideration or the value, as the case may be. (b) So in a case in Iowa,() where part of the land had been taken for a public use, it was held that the measure of damages was a sum which bore the same ratio to the consideration money that the market value of the land as depreciated by the incumbrance bore to the market value without the incumbrance. * Where the eviction complained of is partial, the recovery is proportioned to the value of the part of the premises to which the title has failed. Where action was brought on the covenant of seizin, the title to part of the premises having failed, it was insisted, on the authority of an English case, that this partial failure of title gave the plaintiff a right to recover the entire purchasemoney. But the court held otherwise: that it was com 3 1 Rickert v. Snyder, 9 Wend. 416 (covenant of seizin). Morris v. Phelps, 5 Johns. 49, rec (*) Fritz v. Pusey, 31 Minn. 368. ognized in Guthrie v. Pugsley, 12 Johns. 126. 3 Farrar v. Nightingal, 2 Esp. 639. () Wright v. Nipple, 92 Ind. 310; Harlow v. Thomas, 15 Pick. 66, 69; Batchelder v. Sturgis, 3 Cush. 201; Porter v. Bradley, 7 R. I. 538. (*) Kostendader v. Pierce, 37 Ia. 645; Koestenbader v. Peirce, 41 Ia. 204. |