delivered the opinion of the court. This action is for a breach of the covenants of seisin, contained in two separate deeds.
In one of them, the defendant, for a large consideration, conveyed three tracts of land,when as to two of those tracts, he had only a right to an undivided part; and in the other deed, for a valuable consideration, he conveyed one tract when he had a right only to an undivided part of it.
Upon the trial, the defendant offered to show that the lands to which the title in part failed, in the first deed, were of inferior quality to the other lands mentioned in the deed, and this evidence was rejected. He also offered in evidence deeds executed a few days before the trial, *54to the persons under whom he held when he conveyed to the plaintiff, with a view to confirm the title, and this evidence was rejected. A verdict was taken for the whole consideration given for the lands, of which the title to part only had failed.
The questions arising upon this case are respecting the competency of the evidence offered, and the true rule and measure of damages.
1. The deeds of June, 1807, were properly rejected. They were executed only a few days before the trial, and the rights of parties must be determined according to the existence and extent of those rights, when the action is commenced. (2 Saund. 171. c. 3 Term Rep. 186. 4 East, 507.)
2. The other points in the case merit more attention. They depend upon the exposition and application of principles of general importance.
The fee of five-sixths of the two tracts, particularly mentioned in the first count in the declaration, may, for any thing that appears to the contrary, reside in the plaintiff; the defendant had a title to such proportions of those tracts when he conveyed them, and that title must have actually passed by the deed. The plaintiff has never offered to rescind the sale ; nor if he had, do I perceive how it would have availed him, in a court of law; since the contract was executed, and part of the consideration fulfilled. I am not aware that even a court of equity, in England, has ever undertaken to rescind a sale, because the title to a part of the property failed ; though I admit there may be cases in which it would be extremely just; and that the doctrine prevails in countries under the influence of the civil law. The case of an exchange of land is an exception, at the common law ; for there if A. give in exchange three acres to B. for other three acres, and afterwards one acre is evicted from B. in this case all the exchange is defeated, as the exchange is upon a condition in law, that the title to each part shall remain entire; and *55It is the office of a condition to defeat the whole and not a part. (Bustard’s case, 4 Co. 121. b.) The case of an exchange and of a partition depend upon this implied condition, which seems not to have been extended and applied to other assurances of land. But.without pursuing this point further, or giving any definitive opinion of the court on the general question, it is sufficient to observe, that there was nothing in this case to authorise the plaintiff to go for the whole consideration, because the title to part failed. That fact alone did not 'rescind the sale, after the deed was delivered, and the consideration paid. The plaintiff was entitled to recover damages only in .proportion to the extent of the defect of title. This is an old and well settled rule of damages ; thus in the case of Beauchamp v. Damory, (Year Book, 29 E. III. 4.) it was held by Hill, J. that if one be bound to warranty, he warrants the entirety; but he shall not render in value, but for that which was lost. In 13 E. IV. 3. (and which case is cited in Bustard’s case,) the same principle was admitted; and it was declared and agreed to by the court, that in exchange, where a want of title existed as to part, the party evicted might enter as for a condition broken, if he chose ; but if he sued to recover in value, he should recover only according to the value of the part lost. Though the condition be entire and extends to all, yet it was said that the warranty upon the exchange might severally extend to part. So in the case of Gray v. Briscoe, (Noy, 142.) B. covenanted that he was seised of blackacre in fee, whereas in truth it was copyhold land, in fee, according to the custom ; and the court said that the jury should give damages according to the difference in value, between fee-simple land and copyhold land. There is then no law or reason why the plaintiff should recover more than one-sixth of the consideration money and interest, for the two tracts mentioned in the first count, and five-sixths of the consideration money and interest, for the tract contained in the second count.
*56Another question in the case is, whether the defendant ought not to have been permitted to show that the lands in the deed of 1795, of which there was a failure of title, were of inferior quality to the other lands conveyed by the same deed. This appears to be reasonable J and the rule would operate with equal justice as to all the parties to a conveyance. Suppose a valuable stream of water with expensive improvements upon it, with 10 acres of adjoining barren land, was sold for 10,000 dollars ", and it should afterwards appear, that the title to the stream with the improvements on it failed, but remained good as to the residue of the land, would it not be unjust that the grantee should be limited in damages, under his covenants, to an apportionment according to the number of acres lost, when the sole inducement to the purchase was defeated; and the whole value of the purchase had failed ? So on the other hand, if only the title to the nine barren acres failed,the vendor would feel the weight of extreme injustice, if he was obliged to refund nine-tenths of the consideration money. This is not the rule of assessment. The law will apportion the damages to the measure of value between the land lost, and the land preserved. This doctrine is laid down as an elementary rule in Pothier’s treatise on the contract of sale. (Traité du contrat de vente, No. 99. 139. 142.) He says, that an eviction of part of the thing sold, not only gives an action on the warranty; but the purchaser will recover a proportion of the price paid, in a ratio to the amount of the part from which he was evicted; and that if the eviction be of an integral part of the estate sold, as for instance, of a meadow or vineyard belonging to the farm, the damages must be assessed, according to a valuation of the price of the meadow or vineyard, and the proportion which it bears to the price of the whole estate. Nothing can be clearer than the equity of this rule.
The same principle is to be met with in the civil law. Bonitatis cestimationem faciendam, cuín pars evincitur. *57And Ulpian puts and answers this question ; quid enhn, si, quod fait in agro pretiosissimum, hoc evictum est ; aut quod fuit in agro vilissimum ? eestimabitur loci qualitas, et sic erit regressus. (Dig. 21. 2. 1. 1. 1. 13. and 1. 64. § 3. The recovery in value upon the warranty at common law, was regulated by the same rule. The capias ad valentiam was issued to take as much land of the warrantor as was equal to the value of the lands lost. Cape de terra in balliva tua ad valentiam tantee terree quod B. clamat ut jus swum ; and if the lands of the warrantor lay in another county, different from that in which the lands in controversy lay, then the lands in question were first appraised by a sheriff’s inquest, and afterwards, the writ went to the sheriff of the other county, to take lands of equal value,-which value was specified in the writ. (Bracton, 384. a. b.) If the recovery in the present case had been of an undivided part of all the. lands conveyed by the deed, then the rule of apportionment of damages, according to the relative value, could not have applied; and this distinction runs through the authorities on the subject. But the plaintiff’s title failed only to an undivided part of a specified tract, and remained good to another and larger tract, conveyed by the same deed and included in the same consideration. The apportionment according to the relative value is therefore strictly and justly applicable.
The court are accordingly of opinion, that the verdict he reduced and regulated according to these principles j and if this cannot be done by agreement of the parties, a new trial is awarded, with costs to abide the event.
Rule granted, ut supra.