[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 432 Whether the contract of indemnity was by deed or by simple contract is not material. It was broken by the eviction of the plaintiff some two years before the trial, and the six years' limitation prescribed by statute for the bringing of actions upon promises had not therefore run. The statute commenced to run from the time of the eviction; but the objection was not taken at the trial, that the instrument was not under seal; had it been taken, the attention of the witnesses would have been called to it, and the fact more distinctly proved than it was, although from the evidence it was, without doubt, a sealed instrument. The execution and delivery of the assignment, containing the covenant of warranty, its loss and contents, were sufficiently proved. The referee, upon the evidence, was warranted in holding these facts well proved. The execution of the paper, its delivery, and the substance of it were proved by the subscribing witness, whose testimony as to the contents was corroborated by Mr. Gifford and others. The loss of the paper was proved by the several witnesses called to that fact. The statement of the contents of the assignment, in the record of judgment, in Dennison v.Haywood, was, without objection, adopted by and made a part of the evidence of Mr. Gifford, and that part of the record was properly in evidence as a part of his testimony, and as his version of the written agreement. It was not objected that the witness had not stated sufficient to entitle the reading of this part of the record as a statement by him, or that he should, from recollection, state the contents of the instrument. The record was not admitted as of itself evidence of the assignment, but merely as the statement of the witness of such contents.
Whether the present defendants had notice of the action against Haywood, and defended it, is not material. Without notice the record was prima facie evidence against them, and it was for them to show that there was a defence to the action, and that their title to the premises had not become forfeited. The judgment would not in the absence of notice, have concluded them, but was evidence against them. *Page 434 (Bridegport F. M. Ins. Co. v. Wilson, 34 N.Y., 275.) There was no attempt to disprove the claim that the title to the lands had failed by the omission of the defendants to pay the purchase money due the State. The plaintiff was equitably and legally entitled to the measure of damages awarded her by the referee. It is claimed, on behalf of the appellants, that the rule of damages prevailing in this State in actions of breaches of covenants of seizin, and for quiet enjoyment, and by which the recovery is limited to the purchase money paid, and interest, should have prevailed in this action. The rule referred to is very favorable to the covenantors, and whether it should be applied when the title fails by the fraud or fault of the grantor and covenantor, is at least, doubtful. But it is not applied in cases of executory contracts, where the vendor has sold lands to which he has not a perfect title, and where he undertakes to complete and perfect it. In this case there is an expressed agreement for indemnity, and a recovery which does not give the vendee the benefit of his bargain, and the value of his purchase does not indemnify him against loss. The true rule of damages as a measure of indemnity in such case is the value of the land at the time of the eviction or other breach of the contract with interest from that time. (Trull v. Granger, 4 Seld., 115; Hopkins v.Grazebrook, 6 B. C., 31; Hill v. Hobart, 16 Maine, 164;Brinckerhoff v. Phelps, 24 Barb., 100; McDonnell v.Dunlop, Hardin, 41; Fletcher v. Button, 6 Barb., 646.) The plaintiff lost the benefit of her purchase, by the omission of the defendants to perform their agreement, by paying for the lands to perfect her title. The loss was occasioned by the act of the defendants; against which they covenanted to indemnify the plaintiff, not merely by restoring the consideration of the purchase, but by paying her the equivalent of the lands to which she was entitled. This alone would adequately indemnify her against loss.
The judgment must be affirmed.
All concur, CHURCH, Ch. J., and EARL, J., concurring in result; ANDREWS, J., absent.
Judgment affirmed. *Page 435