OF :TIRE STATE- OF ARKANSAS, 313 LITTLE ROC& ian'y LOGAN MouLDistt: ROBERT A. LOGAN cgainst LEAVII MOULDER. ERROR to Pope Cirouit Court. Where a defendant at the return term craved over arid demurred, and after de-murrer sustained, filed his plea, to which a demurrer was sustained, and a -, writ of enquiry thereupon aWarded; an entry of defatilt made at the next, terin is idle a .2 nugatory. The evidence ora Lovely claim is the certificate of the Register and Receiver, uSually endorsed on the back of the proof, %bowing that the conditions'of the act of May 24,1828, and the stipulations of the treaty of May • 23,1828, have been complied with. When the settler is able to adduce this .. certificate, his right of entry is complete.. . The old covenants of warranty inserted in ancient de - eds, and the action upon them have long since become obsolete in England, and never had a legal existence under our form of government.. The covenants of seisin, of right to convey, and against incumbrances, are personal covenants, not running with the land, nor passing to the assignee: They are mere choscs in' action, not assignable at common law.: . The covenants of warranty, and for quiet enjoyment, are in the nature of re-. al covenants, and run with the land, • When the °Traitor of a Lovely claim covenants that he has a good and valid claim, orf b ull power and lawful authority to convey, he will be comPelled to produce the evidence of his title, whenever it is legally demanded.. In inch- case, if the vendee suspect the title to be defective, he is not.bound to Wait till he is legally evicted, but may .commence euit at any time, and maintain hie action, unless the vendor show that he has perfornied the condition ef . his bond. Where the plaintiff declares therefore, on a covenant of seisin,.or of good right, full power and lawful authority to convey, it is unnecessary to allege an eviction; for the covenant is broken, if at all, at the very moment it is made. All covenants, not prospective, and that do not pass with the land, are strictly personal, and if there is no right or authority in the person making them, they are broken as soon as ,made. But in order to charge a party on a covenant of warranty, or for quiet enjoyment, eviction must be alleged. Where the breach in the declaration in that the defendant had no title:to the claim he conveyed, and the plea ansWers thereto, that he " had . some title;" the plea is no answer, and a demurrer to it is properly sustained. . The ultimate extent of the veridor's responsibility, under any and all Of the . usual covenants' in a deed, is the purchase money, with interest,,and the covenant or deed is evidence of that purchase money. . An instructibn, therefore, that . the measure of damages was the viltie of a LoVely claim at the date of the covenant, is erroneous. This was an action of covenant commenced by Adder in the court below , to September, A. D. 1831, upon an instrument of writing under : seal, by which Logan conveyed to Moulder a chin] to three hundred and twenty acres of .land, coMmonly called a Lovely claim,, of one Peter Mercer, and bound himself* in 'the following words:. "Add
314 CASES IN THE SUPREME COURT laioTeTKt,E the said Logan hereby warrants and defends said claim to be good jan 'Y 1839 agreeably to said act of Congress; and the said Logan further binds loom; himself to make Such other and further proofs as may be necessary MOULDER. to establish the aforesaid claim." The breach assigned was that the defendant had made no such other and further proof as were necessary to establish the claim; that said claim was not a good and bona fide one; that the deferidant had no title to said claim, and had furnished no proof necessary to establish its validity. At the return term the defendant below craved oyer of the writing declared on; and filed his general demurrer to the *laration, which was overruled; and loe thereupon filed his plea in bar, in which he al. leged that the " said claim of the said Mercer is and was a good claim, as covenanted by the defendant, and that the same was and has been proven up according to law, and all the necessary proof has been made, so far aS the officers of the land office at Batesiille tequired;" and that there never has been any notice or demand given to or made on this defendant of 1.ny other or further proof being necessary to establish said claim; and that the said defendant had, at the time of making said covenant, some title and claim to the said settlement right of him the said .Mercer." To this plea the plaintiff demurred, and the order thereuporl is as . follows: "Whereupon, after hearing argument of counsel the court sustained the said demurrer. It is, therefore, considered by the court, ' that the said plaintiff' have, and recover from the defendant the costs ' by him about demurrer expended, and a writ of enquiry awarded, returnable at the next term of this cond.". No further order was-made at that term. At the neit term the defendant was defaulted, and interlocutory.. judgment entered against him, and the damages assessed immediately by jury,' for which damages so assessed, judgment was rendered at that term. The defendant appeared befo r ' e the jury in mitigation of aatm. ages, and offered to refer to all the stipulations, conditions, and covenants, contained in the writing declared to show that the plaintiff was entitled to small or nominal damages. This the court refused to permit, and instructed the jury that they bad only to find the value of a Lovely claim, at the time the covenant was executed. CUMMINS and PIKE, for the plaintiff in error: Th ., e plaintiff in error contends that the demurrer to his plea Was im-
OF : TETE STATE OF ARKANSAS. 315 properly sustained:. The plea is a full answer to the whole breach,. LRIoTTLE and every part of it. It alleges the claim was a good one, as cove- Jat''y 1.83P nanted by him—that it had been proven up according to lavv, and all 1,0PAN VS. the necessary proof made so far as required by the land officers—and siouLDEB, 'further, that he had, when he made the covenant, some title and claim to the said settlement right. It may be here observed, that although ow good breach is sufficient, aneb.therefore, there being one such in the declaration,,to wit, that t he claim : ivas not a good and bona fide claim, the demurrer tO the declaration, Was rightly overruled; Yet, if there are several bad breaches and one good one,' and the plea : answers only the good breach, it Will be adjtidged,sufficient. In this case the plea, although perhaps cle-fective in point of forM, and containing superfluous averments, answers the , only good breachc and is sufficient: The breach that Logan had Made no, Other or further proof is bad, because it is not averred that sneh other or further proof had become necessary, without which there was .no breach of the covenant. The plea, however, goes on. to aver that all the proof which was necessary had been made, and that the land officers requfred no mote. The averment in the breach., that Logan had no title to the claim, is insufficient. An eviction by better title is necessary even in chancery, to conStitute a breach of' warranty of title. Greenby et al v. Willcox, 2 J. R. 1. If the allegation in the plea that he had " some title " is not:a sufficient answer, where such answer is necessary; yet as it was unnecessary, the plea was notwithstanding,good. A bad breach need not be noticed in the plea. Wait v. Maxwell, 4 Pick. 88. BUt there is a still more fatal error, and that is, that no judgment being rendered at the return term, except simply for costs upon the : demurrer, and the defendant still having the right to plead over, a writ Of enquiry was, awarded; and ai the next term an interlocutory judg-'meat was rendered by default, the damages assessed by a jury at the sante term; and- final judgment rendered therefor.- By the law of the land, then, and still ia forcc, it is provided—that " all Writs'of enqui-ty .§hall be executed at the next succeeding term after an interlocutory judgment is given." Dig. p. 322. The assessment of the damages in this , case,was, therefore in direct violation of law, and void, and the judgment based thereon invalid. , The plaintiff in error also contends that the court beloW erred in directing the jury that the measure of damages Was the value of a
216 CASES IN THE , S ' UPREME COUTO 1.itTTLE Lovely claim at the time of executing the covenant . ROCK, ; and,submits tb* levy ins the true measure of damages was the consideration Mentioned in the iooAN covenant, and interest thereon, unless there was something in the cov-2 „7: =. enant itself to, qualify it—(no other evidence being produced),--an4 that, therefore, his counsel were entitled to comment upon, and offer to the jury for their consideration in making up their verdict, the whole covenant, and all its Various stipulations and conditions, inasmuch, as the'verdict might have 3beek materially affected thereby. The measure of damages in an action for breach : of coienant of quiet enjOyment, and eviction, is the value of the land at the time of the sale; , and,the price agreed on by the parties is considered cenelusive evidemie of spa value. Kinney v.. Watts, 14 Werid. 41; 2 Wind. 405; Staats v. Ten Eyck's' Extrs, 3 Caine.s 811; Pitcher v..Livirigston, 4 J. R. 1; Morris V. Phelps, 5 J. R. 49; 5 J. R. 35; Waldo v Lacy, 7.ji R. 173; 'Caulkins v. Harris, 9 R. 324; Bennett v:` Jenkins, 13 J. R. 50; Marston v. Hohbs, 2 Mass. 433; Bickford v. Page, 2 Mass. 455; Bender v. Fromberger, 4 Dallas, 441; Duvall v. Craig, 9 Wheat, 62 n. c.; Letcher et al v. Woodson, 1 Brock. 212; Shepherd et al v. Hamp. ton, 4 Cond. R. 233 '; Hopkins v. Lee, 6 Co?td. R. 23. In an action on coyenants of seisin and good right ta convey, the namages are the consideration money and interest: See cases aboye— and Caswell v. Wendell, 4 Mass. 103; Sumner v. Williams, 8 Mass. 162; Nichols r. Walter, 8 Mass. 243; Hari`is' v. Newell, 8Mass. 262: Leland'v. Stone, 10 Mass. 459; Gore v. Braizier, p Mass. 523. 9n covenants for warranty and quiet enjoynieht, the valhe ofdam-ages;is the same. See:as above 7 —and also in Virginia,- _Lortither"v.. Commonwealth, 1 Hen. r Mum. 202; Nelson v. Matthews, 2 Hen.41. Mtn, 164; Bigelow v. Jones, 4 Mass. 512 :-,So in South carolina,,Liher- v. Parsons, 1 Bay 19; Guerard v. Rivers, 1 ,Ray 265—and in Connecticut, Horsford v. Wright, Kirby 3—and New .1fersey, Hulse v. White, 1 Coxe, 173So in Indiana, Lindley v. Lukin',,l . Blackf. 286; Blackwell v. Board of Justices, 8,r.c. 2 Blackf. 142--And in kentucky, Harland v. Eastland, Hardin,,599; Cox;v. Strode, 2 Bibb 273; Cosby v. West, 2 iiibb; 563. Booker v . Bell, 3 Bibb, 173; Davis v. Hall, 2 Bibb, 590. And the-rule is the oame on covenants to convey, as on covenants of seisM, where there is an inability to conVey, not arising from fraud m the vendor. Thefule of damages is in'Such case inva.riably the pur7 chase money and intarest.14:Rut/plge V; Lawrence; 1 Marsh, 390; 14nicin T. Maxwell,2 Marsh. 488.
OF THE STATE OF ARKANSAS. 317 LitTie' FOWLiIty ontra: ROOK, The defendant, in' error, eontends that the plea of the said Logan an'y -1839 was Wholly insufficient in' lavV, and no answer to the averments con-, LOGAN taified in the -ileclaration; and consequently the demurrer to the said' moinlit. plea was properly_sustained. Said plea iS bad for duplicity, setting up several defences:— . -eabh subject matter of defence should have been set Out in a separate 'plea; unless said Logan had pleaded general performance Of all the covenants, which is not pretended in said plea.— Some, of- the' diitinct parts of said plea contain matter, which would" throw the burden of the proof upon the plaintiff belOw, ty a Conclu siofl to the country, whilst other parts thereof must necessarily .conclude with a verification, and place the onus probandi on the said Logan; consequently:such matter could not properly be included in the same plea different parts being . wholly repugnant to each other. Said plea also wholly fails, in form and substance, to respond to. the declaration; nsing terms vyhich are not msed,,either in the covenant or declaration: . and failing tn use others, to which it was absolutely, essential to . Tes-pond. , The judgment for costs against, Loga74 upon the demurrer to this plea, and,an award of 'a writ of enquiry to next term, is substantially good, and sufficient to justify the assessment of damages at the subsequent term. , dt is not contended that the interlocutory judgment at the returu term is technically in form; but under the statate it is sufficient.: Jir o judgment shall be abated, arrested, quashedor reversed, for any defect or viant of form. See Pope, Steele, McCarapbell, Dig. p. 322, sec.. 25. There is sufficient on the record to show that a judg-pent upon the demurrer was given, and a writ of erquiry awarded,. which. is substantially sufficient; and such judgment was properly rendered, as a matter of course, against the said Logan, unless he had asked leaveto plead over. If he has failed'to ask such leave, it was his own laches, of which he cannot be permitted to take advantage in this:court. The assessment of damages, therefore,, at. thc subsequent term, under said judgment on demurrer and award of a: writ of enquiry, was-strictly legal. . And this position, it is contended, cannot. be shaken by the fact on the record, that a judgment by default was. entered at said subsequent term; which is but surplusage, and can in no wise affect the case. After an appearance by Logan., a judgment by default could not be rendered; and 'there „ appearing one proper interlocutory judgment on the record, rendered at the return term,
318 CASES IN THE SUPREME COURT on said demurrer, this court will construe the record that the one pro— ;an 's' 1 859 perly rendered shall stand, and the one improperly entered and not , Lo V n S. A rr material to the case shall be excluded as surplusage. The assessment MOULDE8. of damages, then, was niade at the next term after the awarding of the writ of enquiry, as 'the Statute directs. „ The, defendant in error elso contends that the instruction given.by the said Circuit Court to the jury; . was in accordance with law, and that the value of a Lovely claim as specified in said covenant, was the true measure of damages, under the state of the evidence present ed by the Bill of Exceptions. LACYj Judge, delivered the opinion of the court: This is an action of covenant foUnded on a writing under seal, by which Logan binds himself to convey to Miulder, the Lovely aaim of one Peter litercer, to three hun&ed and tWenty acres of land, and warrants the same to be a good chlim agreeahly to the act of congress, and to make such other and further proof as may be found necessary to establish its validity. The breathes assigned negative the general terms of the covenant; and . allege, that the covenantor, did not make any other and further proof to establish the claim, that the claim is not a good and . valid claim, and that at the time of execntiog the deed, the defendant had no title to said claim. At the return term of the writ, the defendant in , the court below, ap-. peared and craved oyer of the writing sued on, and filed a general demurrer to the declaration, to Which there was a joinder, and judgment was thereon given against the demurrer. lie then put in a plea. of performance, ave'rring that no other or further proof was necessary to establish the claim, that the claim was a good and valid claim, and that he had some title to the settlement rightof him, the said Mercer., To this plea there was a demurrer, joinder, and judgment against the snfficiency of the plea; and a writ of enquiry was thereupon awarded to the next succeeding term. At the return term of the writ, the entry is; that the defendant made default, and a jury was then called to execute the writ of enqUiry; wha iiSsessed damages for the breach of the condition of tile covenant against the defendant, and final ment was thereon- rendered. At the trial of the cause, the court in, structed the jury that the measure of damages was the ' value of a Lovely claiin at the time of executing the covenant, and refused to permit . the attorney for the defendant to read its condition§ as eVidence irk nf darnagei.
OF THE STATE OF ARKANSAS. 319 the opinion of the court a bill of exceptions was filed, and made lrorT part of the record, and the case is now brought up to this court, by a Jan' y 1839 writ of error to reverse the judgment below. The assignment of errors presents the following questions for our ex- mi1 1 0 :DA:R, amination and decision, First, are the proceedings in the cause, in aivarding and executing the writ of enquiry, illegal? Secondly, is therg a good cause of action laid in.the declaration, and are the breaches aisigned, or in Other words, is the defendant's plea a sufficient answer , to, or:denial of the allegations charged? Thirdly, what is the tnie rule oimeasure of damages for a breach of covenant of seisin, warranty, or to convey a good and valid title. The first question presents no difficulty, and may be briefly disposed of. The writ was awarded and execirted in stria conformity with our statute on the subject, the entry that the defendant made default at the return term of the writ, was wholly idle and nugatory, for the record shows that before that tithe, he had appeared and pleaded to the action; and such an entry being an improper and illegal one, surely cannot be permitted to set aside and annul' both an interlocutory and final judgnient properly rendered, and regularly entered up in the cause. See Dig., p, 322. Before the court proceeds:further in their investigation, it is necessary to define what is meant by the term Lovely claim. It is a donation made by the general government, of two quarter-sections of the public lands, according to the legal subdivisions of the public surveys, to a particular class of persons, who are embraced by the act Of congress of thd '24th of May, '1828, and who have complied with the conditions therein imposed, and also With the stipulations of the treaty ratified between the, United States and the Cherokee Nation of Indians, on the . 28th of Ntiv,1828. See 2d vol. Laws of the U. States relating to the public lands,p. 233, sec. 8-9.; and Indian Treaties, A r o. 97, p. 52. The evidence of the claim, is the certificate of the register and receiver of the land office usually endorsed on the back of the proof taken before them, showing that the conditions of the act, and the stipulations of the treaty have been complied with. Whenever the settler is able to atIL three the certificate of title, his right of entry, which in the first instance was inchoate, then becomes complete, and he is fully authorized to make a location or entry of the land claimed according to the provision of the law under which his interest accrues; and the governMent on the presentation of the certificate of the register of the land office to the secretary of the'treasury, is bound to issue to him or his
320 CASES IN . TIIE SUPREME:01/4MT LITTLE Rom hei ' rs a patent or grant for thc land. The covenant declared on, war ; an'Y 1839 •-•■•■■•=.. r .. a , n , ts and defends such a claim to he,a good and valid claim, agreeably LOGAN LO the act of congress, and purpOrts to convey, a good and lawful title v,.., mouLDER. under it. The declaration is not accurately or formally drawn, but is ,believed, however,- to be substantially correct, if it contains . a .geod .Causeof action. As there was a demurrer to r the plea, if the declaration is defecti • e, or the breach is not properly assigned, the court will go back , to it, and give judgement against him , who committed the ;first faultin the pleadings. This brings us to the . consideration of the nature of the,covenant sued on and the conditions it contains. It is a deed of bargain and sale to convey a Lovely claiin, with a warranty of title. The breaches assigned negative the general words of the .coienant; . but the cause of, action, if, there be any, :arises from the allegation, that at the time the defendant executed:the covenant, he had no good or ;valid title to the claim in controversy. It is contended by the plaintiff in error, that this is an action . founded on a warranty of title, and that no recovery can be had, because the declaration no where alleges an eviction. The old covenant pf warranty usually inSerted in. ancient, deeds, and the action upon them have long since become 'obsolete .in England, and it is -believed, they never had any legal existenee under our form of . government; thej were real covenants running with the land, whereby the grantor of an estaie in freehold: warranted the title, and he and his heirs upon voucher; or judgment rendered against him in a writ, werrentici chartae, were bound to give other lands to the value p f those from which there bad been.evictien by a paramount title; the. heir of the Warrantor was liable only on the , condition that he had other land of equal value cast on him by descent. The introduction of.personal covenants into modern . deeds, has lot* since superseded this mode of conveyance, end the u g ual covenantS in such case are: 44 First, that the grantor is lawfully seized; Second, ,that, he has. a, good right to cenvey; Third, that the land is free from incum-branee; Fourth, that the grantee shall quietly enjoy; FifM, that the grantor will warrant and defend.the title against all lawful claims." The covenants of seiiin, and of right to convey, and against incum-brances , are personal ceVenants, not running with the land, nor passing to the assignee, but are declared to be mere choses in action, not assignable at common law. , The covenants of warranty, and of quiet enjoyment, are in , the nature of a real covenant., and rtm with the land, .and descend to the heirs, and are made, transferable to-the assignee;
' 0-1141g g TATE'. 0*" ARKANSAS,i. the r presetit. case1he Cause of action' does not resulOOM the -03v-enant . of Warranty: . nor on the,defendant's failure to make other and 71PIV,!:: further:proof to- establish the validity 'of the 'elaini; for the plea fully fl?", answers , both of:these allegations; but 'it accruei on 'the subatantial averment, that at the time of executihg the deed, Logan had no right nor title to the donation-claini of Peter Mercer. WhatisAhe obligation imposed by the assignthent-of such breaen?' Muit the-vender allege'an eiiction to sustain Ids action, or If he avers that the vendor never bad dny title to convey; is the allegation of an eviction dispensed With? , When was the covenant broken, or at What time did the, cause of action accrue'? 'This questiOn is readily ansviered by attending to thenatUre Of the pleadings in the cause; arid the kgal - presumptions they raise: ,The grantor is . certainly bound by the deed. In thathe has asierted he has a good andvalid claim, or full . power and laWful authority tO convey, and consequently he hai' voluntarily taken upon himself the burden of proof, and as it was'mare properly in his own knowledge, what estate he had granted, than that of the grantee, who is presumed to be a stranger to it, the court will compel him to produce the evidence of his title, whenever it is legally demanded; so that they niay see -whether at the,time he executed the covenant, he had ja good -and valid claim, or full power and lawful authority to convey; the 'vendee is supposed to rely on the vendor's-deed, and- if he suspeetsthe title to be defective he is not licitind to wait until he-is lawfullY eVicted,' butmay comMence suit at any tiMe, and'maintain his action unless the' -vendor show he has performed the cdndition of his bond. What is that condition? "Thevendor has covenanted he had a good right and law,- ful authority to convey;which is equivalent to a covenant of aeizin; and ibit : being the case, the laW will not permit him to shift the responsi-fromlhis ownshonlders on to those of the vendee:" It is imma; terialin whom the title is vested Ohe grantor has declared that it vests in him, and:he is bound by his deed and-the legal presumption arising • from it, to sheiw what title he possessed, when his grantee questions it in a; court ofjuatice. -His authority to execute the covenant is derived : from thelegal interest he had in the claim, and where there is no right lar title there can be no , authority to sell: It is, therefore, unnecessary for a plaintiff in' declaring on a covenant of seizin, where a defend, 'ant binds himself that lie has gcod right, tUll , power, or lawful authority 4o gmnt; to allege an eviction, : in order to maintain the action, for"
322 eASES IN lin SUPREME COURT 1171 ' 1E ROCK, the co - venant is broken if at all at the very moment it is executed, and . 1an' y 1339 a right of action accrues instantly upon the breach of it. All Cove-- Loom/ nants that are not prospective,and that do not pass with theiand, are itoolaRe. strictly personal covenants, and if there is no right or authority in the party executing them, they are declared to be broken so soon as made k, and may be sued on at any time, and a recovery had without alleging an eviction, or an interruption in the , title. The leading case on this subject is that of Bradshaw, 9 Co. Rep. 60; where the true rule was laid down by all the judges, which has been followed up ever since. In the case of Meiscot vs. Ballet, C'ro. Jac., 369; and Glinister vs. Aud-ley, Sir T. Raym. 14; the question was again brought under discussion, anti the decision in Bradshaw's case fully sustained. The doctrine settled_ . by those authorities has been repeatedly approved in many recent cases by the court of king's bench, and it has been expressly recognized arid reasserted by most, if not all of the American decisions on the subject, 2 Saund. 181, n. b.; 8 East. 80; 8 7'. R. 459; Bac. Ab. Cov. 15; Pullin vs. Nicholas-, 1 Ler. 83; Cro. Eliz. 749, 916. Greenby vs. Willcocks, 2 J. R. 1; Hamilton vs. Wilson, 4 J. R. 72; A bolt vs. Allen, 14 J. R. 248; Com. Dig. Pleader C. 45;49; Marston vs. Hobbs, 2 Mass. 433; 2 Root's Rep. 4; Sug. on Vend. 415; Morris vs. Phelps, 5J. R. 49; Delavergne vs. Norris,7 J. R. 348; S. P. Stanard vs. Eldridge, 16 J. R. 254. The rule is different in covenants that run with the land; at common law upon voucher, or upon the writ of war-rantia chartsT, the demandtent recovered of the warrantor to have other land of equal value with the lands of which feoffee is evicted; and when personal covenants were introduced as a substitute for the remedy on the vouchers and warrantia, the established measure of damages was not at all varied or affected. In order-to charge a party on a covenant of warranty, an eviction Must be alleged by a paramount legal title, and so on a covenant for quiet enjoyment, for in both of these cases there is no breach of the condition, unless an eviction be had, for it is that which constitutes the breach, and gives a good cause of action; 2 Saund. 178, a. n. 9, 181 a -. n. 10; Dudley vs. Folleatt, 3 T. R. 584; Johnson vs. Smith, 1 H. Blackstone, 34; ' Greenby vs. Wilcocks, 2 J. R. 1; 3 Marsh. 324; .Marston vs. Hobbs, 2 Mass. 439; 2 Kent, 475. This principle may be consideredconcliesively settled; that in all personal covenants, where the grantor has no right or title to convey, the breach of the covenant happens, if at all, at the very moment of time the deed is executed; and in declaring on such a cov6 ant, the •
CAsEp IN THE SUPREME CCM 7 30 plaintiff need not aver an eviction, but the burden of proof is with the irriA defendant, and it devolves on him to show what interest he had in the Jan 'i mf. r . estate or chattels, in order that the court may judge what authority pool tri. he had to make the grantor agreement: This being the case, it ne- rgion,Dma. oessarily follows, that the deelaration in the present case, sets out s good cause of actien, and that the breaehes are there pmperly assigned. It has already been observed that the plea answers fully every part of the declaration except the averment, the defendant bad no title to the Lovely claim Of Peter Mercer.. In regard to that breach, which constitutes the real cause of action, it wholly avoids the issue; and hence as the breach is well assigned, the plea must of course,le defective. 'The allegation is, that the defendant in the court below has no right nor title to : the claim he conveyed. The plea avers that "he had- some title ta the said settlement right Of the said Mercer:" Whatkind of interest or title had he to the claim as set fmth in his plea? Was it an estate for life or for years, or was he seized of an indefeasible estate of inheritance in fee. It certainly cannot be pretended that the words "some title," mean any one or all of these estates. If they mean any thing, it is, that the defendant bad no title at all, and his plea negatively establishes the charge made in the deelaration, which is,that at the time the defendant executed the coVenant sued on, he1 ad no right, tide or interest in the Lovely claim of Peter Meicer.. The1 court, therefore, rightfully sustained the demur-rer to the plea. The only remaining question to be decided is, what constitutes the true value or measure of damages in actions for a breach of personaL covenant where there is no fraud alleged. This question can scarcely any longer be regarded as open for investigation; the adjudications on the subject have been so frequent and conclusive upon the point, that nothing can be said in support of the justice or policy of the rule. It may now be asserted that the ultimate extent of the vendor's responsibility, under all and any of the usual covenants in his deed, is the purchase moaey with interest. This is believed to be the general rule throughout the United States, and is particularly applicable to the condition and situation of our country ; Staa ts vs. Eet'rs of Ten; Byck Gaines 112; Pitcher Vs. Livingston, 4 Johnson R. 1; Caswell vs. Wendall, 4 Mass. R. 108; 4 Dallas; 441; Marston VB. ilabbs,. 2 Mass. Rep. 434, 455; Dowsale vs. Crains, 2 Wheaton, 62, n. c.p Letcher e i r Arno/d vs. Woodson, 1 Brock:, 212; Shepherd 41 . Others vs.
•rATHE .$TATE:DF..ARLANsAs;._ w,̀1 7XM • . • Hamproisi ner • •• -lcbn(L'Rep, 233 T Hopkins vs. . • Lee. 6 . Cond. Rei., , 1839 . Vs. ,Williairi . s ';'':81...111ass. Rep. 162, ...A r ichas vs W4lio,:8,:fifizss. Rep. ; 5 > IGIA, Di. :44,3; : •.:•, -cc • b. 4q,. 49p, The consideration . rnoney and interest is the cOmpensation in damages . that the vendee:is,entitled .0 , recover, an d;.the:covenaotorAeed., is etidence of . that . value; " !The in terest .is given:to-countervail:the . ménse prole5 that .the • gran tor fo r,. and:is or . ought .to be ,com, Mensurate lepoint.of time, with thelegal . claim Of the mense profits..7- The consideration money •is the . amount . agreedon by the parties them--; selves. What that, the ,venclee • has parted .with,,er , the vendor reeeived?, .Merely 6be , purchase.money , with:interest; .berteinly then, the .vendor should . not be liable. where there is..no intention or evidence of . ..fraud; to , a- greater extent . than • his . vendee' ha5 been injured.; and. that is the COnsideration money andinterest,... . To establish . any other principle .Would . he to:commit, in most cases, great..and palpahle injus-flee, and in many, certain and.speedy ruin. • In • he instructions given.. by...thecircuit . •Court to . the jury.oe that point,. the 'principle , here laid down as to the -measure of damages was clearly departed from,: and.of.- courk, that decision iselanifestly erroneous. The instructioo5 are, that •the value of a Lovely claim . at the date. of the executionelthe covenant, and not the consideration money ami. interest was the correct measure of damages. The itelgment of the cofirt below must therefore be reversed with: costs, and the ..cau0.a. remanded to•be proceeded imagreeably to theopinion here elpressed..
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.