The opinion of the Court was by
Weston, C. J.It is assumed in argument, that Amos Whitney and Thomas Whitten were seized of the lands described in their respective deeds to the defendant, dated August 24, 1835; The lands constitute a part of that, which is the subject matter of this suit. These deeds, with the evidence of their seizin, were rejected as inadmissible, by the presiding Judge at the trial. If this evidence could legally have any effect upon the right of the plaintiff to recover, or upon the .measure of damages, it ought not to have been rejected.
The rules, which have been established to determine the measure of damages, upon the breach of covenants in deeds for the conveyance of real estate, have been framed with a view to give the party entitled a fair indemnity for damage he has sustained. Thus if the covenant of seizin is broken, as thereby the title wholly fails, the law restores to the purchaser, the consideration paid, which is the agreed value of the land, with interest. But in this, as well as in other covenants, usual in the conveyance of real estate, if there exists facts and circumstances, which would render the application of the rule in*263equitable, they are to be taken into consideration by a jury. Leland v. Stone, 10 Mass. R. 459. The covenant was intended to secure to the plaintiff a legal seizin in the land conveyed. If it is broken and he fails of that seizin, he has a right to reclaim the purchase money. But if in virtue of another covenant in the same deed, which was also taken to assure to him the subject matter of the conveyance, he has obtained that seizin, it would be altogether inequitable that he should have the seizin, and be allowed besides to recover back the consideration paid for it. The rule as to the measure of damages for the breach of this covenant, which is just in its general application, could never be intended to apply to such a case. In Whiting v. Davey, 15 Pick. 428, it is strongly intimated by the court, that this rule may have exceptions, as it undoubtedly has.
If Whitney and Whitten were seized, immediately upon the execution of their deeds, which were executed a few days after that, upon which the plaintiff declares, their seizin at once enured and passed to him, in virtue of the covenant of general warranty in his deed. Somes v. Skinner, 3 Pick. 52. It has been insisted by the counsel for the plaintiff that this effect depends upon the election of the grantee, and that the plaintiff here would reject the title arising by estoppel. But we are aware of no legal principle, which can sustain this position. In the case last cited, the court say, “ that the general principle to be deduced from all the authorities is, that an instrument, which legally creates an estoppel to a party undertaking to convey real estate, he having nothing in the estate at the time of the conveyance, but acquiring a title afterwards by descent or purchase, does in fact pass an interest and a title from the moment such estate comes to the grantor.” The plaintiff by taking a general covenant of warranty, not only assenied to, but secured and made available to himself, all the legal consequences, resulting from that covenant. Having therefore under his deed, before the commencement of the action, acquired the seizin, which it was the object of both covenants to secure, he could be entitled only to nominal damages, and in our judg*264ment the evidence rejected was legally admissible. The estoppel, being part of the title, may be given in evidence, without being pleaded. Adams v. Barnes, 17 Mass. R. 365. Whether the seizin of Whitney and Whitten was defeasible or indefeasible, is not a question which can arise under this covenant, which operates only upon the actual seizin and does not assure the paramount title;
The same course of reasoning, and the same authorities, Which justified the admission of the testimony rejected, required that the evidence of title derived by estoppel from Joy’s heirs, should have been received.
It has been objected, that these lands may have been devised by Joy, which may have prevented a descent to the heirs. But an estate in fee, upon the decease of the ancestor, is presumed to descend, in pursuance of the law's of inheritance, unless the descent is shown to have been intercepted by a devise.. By the conveyance from Joy’s heirs to the defendant, the plaintiff acquired not only the seizin, but an indefeasible title. As,.however, that w'as executed, since the commencement of the action, the plaintiff is entitled to nominal damages, and to nothing more, if he has not been disturbed in his possession; and judgment may be rendered for him therefor on the default, which has been entered. But if the actual seizin of Whitney and Whitten is intended to be contested, or the plaintiff would show that he had been dispossessed, before his title by estoppel attached, the default must be taken off, and the action stand for trial.