The opinion of the Court was prepared by
Weston C. J.The defendants have failed to comply with the condition of the bond, within the time limited, and they have not at any time removed the incumbrances therein embraced. The plaintiff then had a cause of action, at the time when the suit was commenced, and was at that time entitled to judgment for the penalty. It is insisted, that he can have execution only for the damages, which had then accrued. The practice of the courts has been otherwise. By the statute giving remedies in equity, statute of 1821, c. 50, § 3, the court, in suits upon such bonds, is to enter up judgment for the penalty, and to award execution for so much of the debt or damage, as is due or sustained at that time. Under a similar statute in Massachusetts, that time was held to refer to the time of the rendition of judgment, and not to the commencement of the action. The statute of 1830, c. 463, provides only upon this point, that when the issue is to be tried by a jury, upon breaches assigned, the damages are to be ascertained by their verdict.
It is further contended, that the plaintiff) not having removed the incumbrances, has sustained, and is entitled to only nominal damages. The condition contains a positive and affirmative engagement, on the part of the defendants, to remove the incum-*281brances, within a stipulated period. This differs from the covenant, usually found in deeds of conveyance, that the premises are free from all incumbrances. Cases therefore under such covenants, are not strictly analogous. In Prescott v. Trueman, 4 Mass. R. 627, which is a leading case, the incumbrance then under consideration, and others put by the court by way of example or illustration, were such as had neither been extinguished nor enforced; for if the grantee had been actually evicted by a mortgagee, or by a party entitled to dower, it could not be said, that he had sustained only nominal damages.
In Boynton v. Dalrymple, 16 Pick. 147, the condition substantially was, that the grantee should not be disturbed in the enjoyment of certain lands, which had been conveyed to him, and it was held, that there was no breach, so long as he was not disturbed. In 4 Kent, 476, (2d ed.) upon covenants against incumbrances, he lays down the law to be, that if the purchaser has not removed the incumbrance, and there has been no eviction under it, he shall recover only nominal damages, inasmuch as it is uncertain whether he would ever be disturbed. Here the plaintiff has been evicted, and the incumbrance arising from the attachment, has become fixed. As he might have extinguished the mortgage, by paying the amount liquidated in the conditional judgment, and also the incum-brance created by the attachment, by exercising his right of redeeming the equity, by paying the amount for which it sold, those two sums, with interest thereon, constitute the measure of his damages ; and he is to have execution accordingly.
Judgment for the plaintiff.