The plaintiff, in her complaint, alleged that the premises agreed to be sold to the defendant were free and clear of all incumbrances, and that she tendered a deed of the premises, with such title to the defendant, who refused to accept. The action was for damages for breach of the agreement.
The answer denied that the plaintiff had a good title to the premises, and set forth the defects in the title, averring that there were other persons interested in the property, who had not conveyed their interest to the plaintiff.
The judge admitted evidence to show that mortgages, which *136the defendant had agreed to assume, had been foreclosed, and the deficiency charged to the plaintiff, and ordered judgment for the whole consideration-money over the mortgages, with the interest thereon, and the amount of deficiency in each foreclosure, with the interest thereon.
I am not prepared to admit, in an action to recover damages, where the defendant’s answer denies the plaintiff’s title to the premises, that the onus of proof is on the defendant to show that the plaintiff’s title is not good. The affirmative is with the plaintiff, who avers that he tendered a deed of the premises, and that the title was free and clear. This the defendant denied, and took issue thereon. It was for the plaintiff to show that he had a title to the premises which were agreed to he conveyed.
A conveyance and possession under it may afford presumptive evidence of title in the first instance, but is not enough where a direct issue is taken on the title.
But whether that be so or not, I think the judge erred in •directing a verdict for the amount as stated in the case.
The true rule of damages against the vendee of real estate for not performing the contract of purchase, is the difference between the price agreed to be paid and the actual value, either at the time of refusal to perform or of bringing the action.
In the present case, the rule adopted was the amount agreed to be paid over the mortgages, and the deficiencies on the sales under the mortgages.
The error, I think, consisted in admitting the price at which the premises sold to he proved as the value; or, which was the same thing, in holding the purchaser bound to pay the deficiencies over such sales.
Had the plaintiff sold the premises at a second sale for less than the amount agreed on, such second sale would have been no evidence of the value.
So in the present case, the plaintiff was not justified in suffering the property to be sold at a forced sale for less than its value, and claiming the difference as the measure of damages. The plaintiff should have given evidence to show its then present value, and claimed for damages the difference between the sum agreed to be paid in the contract and such value. The amount at which the property was sold at the foreclosure-*137sales was not proper evidence to show the value of the property, and consequently the defendant should not have been held liable for the deficiencies on those sales. A different rule might have been proper if the title had passed to the defendant, and he had assumed the payment of the mortgages.
A new trial should be ordered, costs to abide the event
Leonard, J.—I concur.
Peokham, J.—I concur in the result.