delivered the opinion of the court, January 2d 1877..
Thii was an action of covenant. It was brought by the vendee against the vendor on the covenants in a deed conveying land. The vendor covenanted “ that at the time of the ensealing and delivery of these presents, he is the lawful owner, and is well seised of the premises above conveyed, free, and clear of all encumbrances; that the premises thus conveyed, in the quiet and peaceable possesr *450sion of the said party of the second part, his heirs and assigns; that he will for ever warrant and defend against any person whomsoever lawfully claiming the same or any part thereof, by, through or under him, or one William A. Knowles, now deceased.”
The facts necessary to an understanding of the case are these. William A. Knowles died, seised of the land, intestate, leaving a widow, father, brother, sisters and nephew (the child of a deceased sister), but no issue. The plaintiff in error is the father. He therefore took a life-estate in the land subject to the widow’s statutory right. At the time of the delivery of the deed to the vendee he gave to the vendor a bond indemnifying the latter against all claim then or thereafter to be made by the widow' of said William A. Knowles for or on account of the lands. The vendee thus substantially took on himself the risk of all claim the widow might assert, and now makes no complaint arising therefrom. The vendee went into possession of the land under the deed. His possession has not been interfered with by the vendee or by any one claiming by title paramount. Subsequent to the conveyance and before the commencement of this suit, the widow of William A. Knowles, by application to the Orphans’ Court of Erie county, elected to have three hundred dollars’ worth of property set off to her out of said lands. The appraisers appointed for that purpose reported that the land was of greater value than $300, and that it could not be divided without injury to or spoiling the whole, which was confirmed by the court; but no further action appears to have been taken therein.
Before commencing this suit the defendant in error offered to reconvey the land to the vendor, and demanded a return of the purchase-money paid. After suit brought and before trial the plaintiff in error procured deeds of conveyance from all the holders of the outstanding title to the land, except the widow, and caused them to be duly recorded. This after-acquired title enured to the benefit of the defendant in error, thus perfecting his title: Wolf v. Goddard, 9 Watts 547; Baxter v. Bradbury, 20 Maine 260.
The court below held, the language used created a covenant on the part of the vendor that he was seised of an estate in fee simple, and the vendee was entitled to recover the purchase-money he had paid, with interest thereon from the time he had demanded its return. All the assignments of error except the 1st, 9th and 10th are predicated on this ruling and may be considered together.
There is no averment in the deed, that the vendor was seised of an estate in fee; nor is it averred that he was seised of an indefeasible estate. Even the usual words “grant, bargain, sell,” are wholly omitted, and “grant and convey” are substituted. The covenant of warranty is special. It is to defend against persons lawfully claiming under the vendor or under William A. Knowles, deceased.
*451In fact the vendor was the lawful owner of a freehold estate in the land conveyed, and was well seised of the same. The vendee did not become liable to accounkto any one for the rents, issues and profits of the land during his occupancy thereof. He was’ not evicted by any adverse proceedings. His enjoyment of the premises during the life of the vendor was secure. No one claiming under the vendor or under William A. Knowles had disturbed the vendee in his possession. The vendor by his covenant of special warranty was bound to protect the vendee against the outstanding title of the heirs of William A. Knowles. He did this by a purchase of their title. It was held in Baxter v. Bradbury, supra, that if the grantor by deed of warranty had nothing in the estate at the time of the conveyance, but acquired a title afterwards, this title enures to the grantee immediately by way of estoppel, and he cannot elect to reject the title and recover the consideration-money paid in an action for breach of the covenant of seisin ; but is entitled to merely nominal damages where no interruption of the possession has taken .place, and to the damages actually sustained when there has been. In Haverstick v. The Erie Gas Co., 5 Casey 254, it is said in strict law whenever a covenant is broken, the plaintiff is entitled to recover full damages for its breach; but equity intervenes and allows the covenantor to perform on making compensation for his negligence.
The declaration in this case avers, that in consideration of $400, the plaintiff in error sold the land, to the defendant in error, and covenanted he was seised in fee of the same, &c., and charges that he was not so seised. It also avers the payment of $300 of the purchase-money, and claims the plaintiff therein is damaged to the amount of $1000. The claim is not to recover the money paid, but damages more than threefold. It is not in rescission of the contract, but in affirmance thereof, and damages for its breach.
It is true the purchase by the plaintiff in error, of the outstanding title, after suit brought, could not defeat the right of action ; yet it does affect the measure of damages.' The title which the vendor had conveyed had not wholly failed. The failure was partial only. Compensation is the usual measure of damages. We discover nothing in the evidence in this case to take it out of that general rule. The covenant appears to have been made in. entire good faith.
The defendant in error was entitled to recover nominal damages at all events and such further damages as the evidence shows him to have sustained. The assignments are therefore substantially sustained.
We see no merit in the first and tenth assignments, and no evidence of such knowledge in the defendant in error as to justify the affirmance of the point covered by the ninth assignment.
Judgment reversed, and a venire facias de novo awarded.