Mette . Dow. doubtedly the consideration, with interest. But, as we have seen, this is the full extent to which damages can be recovered under any circumstances. It does not follow that the full measure of damages shall be recovered in every case. On the contrary, as we have also seen, the damages may be cut down so far as the interest is concerned, whenever, upon the principle that interest is in lieu of mesne profits, the plaintiff has not been compelled to account for mesne profits. Strietly, the plaintiff is entitled, as held by the supreme court of Massachusetts, to recover the whole amount, subject to a deduction of the mesne profits received by him for which he was not held to account to the paramount owner: Whiting v. Dewey, 15 Pick., 428. Inasmuch, however, as the law, by a presumption which is not allowed to be disputed, treats the profits as equivalent to the interest, the limitation of the recovery of interest to the period for which the mene profits are rendered, reaches precisely the same result: Rawle on Cov., 93, 3d ed.; Guthrie v. Pagsley, 12 Johns., 126; Spring v. Chase, 22 Maine, 502; Petterson v. Stewart, 6 W. & S., 528; Rich v. Johnson, 1 Chand., 20. If, now, the measure of damages may be cut down by a deduction of the interest when necessary to attain the ends of justice, no reason occurs why a deduction of the principal may not also be made in a proper case. The covenant is a peculiar one, and not like an ordinary covenant for so much money. It is rather in the nature of a bond with a fixed sum as a penalty, the recovery on which will be satisfied by Mette v. Dow. the payment of the actual damages. Each vendor, subject to this rule, may be treated as the principal obligor to his immediate vendee, and as the surety of any subsequent vendee to hold him harmless by reason of the failure of title, and the ultimate vendee, when evicted, is entitled to be subrogated to the rights of his immediate vendor against a remote vendor to the extent necessary to indemnify him. Such a vendee, to use the language of the supreme court of North Carolina, sues a remote vendor on the covenant to redress his, the plaintiff's, own injuries, not the injuries of the immediate vendee of such remote vendor. Ac cordingly, that court held, in a case like the one before us, that the measure of damages was the consideration paid by the plaintiff to his immediate vendor with interest, and not the consideration paid by such vendor to the defendant. In other words, the damages recovered were limited to the actual injury sustained: Williams v. Beeman, 4 Dev., 483. The industry of counsel has found some dicta in cases not involving the question, but no direct authority in conflict with this decision. The case of Lawrence v. Robertson, 10 Rich., turns upon the wording of a statute. In Hopkins v. Lane, 9 Yer., 79, the facts, as given by the Reporter, show a sale and conveyance of land by Hopkins to Cox for $2328, and a sale and conveyance of the land on the same day to the plaintiff Lane for $1700. The recovery is stated to have been for the former sum with interest. It does not appear why there was such a difference in the consideration of the two conveyances executed Mette v. Dow. on the same day, and it is certain that no argument was submitted, nor ruling made by the court on the point thereby raised, and now under consideration. On the other hand, in the recent case of Aiken v. Suttle, 4 Lea, 103, 133, the principle settled tends to sustain the North Carolina decision. There, a married woman had filed a bill to recover land which had been sold under a power of attorney executed by her in connection with her husband, and subsequently resold several times. The sale was held to be void as to the married woman, and her right to the land declared, to be enjoyed in possession at the death of her husband. But it was also held that she should account to the then holder of the land for the purchase money received and appropriated by her, with interest, to the extent necessary to re-imburse such holder the purchase money paid by him to his immediate vendor, with interest from the death of the husband. This, it was said, is, in legal contemplation, indemnity for the loss of the land, since it is all he, the holder, could recover from his vendor if he had a warranty of title. "This limitation," it was added, "may seem to operate somewhat arbitrarily, and it may sometimes permit the reclaimant to retain some of the consideration received for the land reclaimed, but, upon the whole, it appears to be equitable, and it is based upon an obvious analogy." The analogy referred to was, in the view of the learned special judge who delivered the opinion of the court, precisely that of a recovery upon a warranty of title to land, citing Elliott v. Thompson, 4 Hum., 99, but without having in his mind the state Mette v. Dow.. of facts now before us. It is only the principle announced, therefore, and not the dictum in the illustration which can aid us in the present case. The principle is in point. The great difficulty in regulating the damages on the covenant of warranty of title, was in finding some measure which would indemnify the purchaser without bearing too heavily on the vendor. In this country, where lands, as a rule, were enhancing in value and being rapidly improved, it was found, that to give the value of the land at the time of eviction, the only mode of securing full indemnity, would be ruinous to the vendor, and often make him liable for an amount which the parties could not have contemplated at the time of the contract. The measure of damages adopted, it was thought, would more nearly meet the difficulties of the subject than any other. Indemnity was, however, all that any vendee could reasonably ask, and if this could be obtained by a recovery within the limit of the measure adopted, it is clear that the ends of justice would be met. The recovery in this case, should, therefore, be cut down to the one-half of the purchase money paid by the plaintiff for the lot, with interest. The learned counsel of the appellee insists that the recovery should be cut down still further, his argument being based upon the title acquired by the appellee, according to his view of the facts, and the effect of the proceedings in bankruptcy. But the lien of the appellee was prior and superior to that of the assignee in bankruptcy. For, although his original bill was discussed, the so-called amended bill, which Mette r. Dow. was in reality a supplemental bill based upon the new fact of the fraudulent conveyance by Potter to Portis, was retained, and the lien thereby acquired also antedated the proceedings in bankruptcy. No attachment was necessary: Code, sec. 4288; August v. Seeskind, 6 Cold., 166, 172. Besides, the conveyance to Portis was good as between the parties, and the title thus acquired has never been sought to be set aside by the assignee. His re-conveyance to Potter after his discharge in bankruptcy, again clothed the latter with the original title, and his conveyance to Dow would carry the covenant of warranty.. The agreed facts do not show that the profit on city script in which the taxes were paid, diminished the consideration actually paid for the land by Dow. And the fact that the U. S. currency, in which Potter paid Mette the price of his moiety of the land, was worth at the time only fifty cents in gold, if it ever could have cut any figure in the case, has ceased to be of importance by reason of the conclusion reached as to the measures of recovery. The judgment below will be reversed, and a judgment rendered here in accordance with this opinion. |