The opinion of the court was delivered by
Kennedy, J.The learned judge before whom this cause .\vas-tried in the Circuit Court, is now satisfied that a new trial ought not to have been granted because the jury did not find nominal damages in favor of the plaintiff instead of giving a verdict generally for the defendant. Indeed it has been long since well settled, by numerous authorities, that when the plaintiff has only entitled himself to claim nominal damages, and the jury find a verdict for the-defendant, that the court will not set it aside and grant a new trial, unless the question of fight or title to property of value should be involved in the suit, and affected by the verdict. Suits are not to be encouraged for the purpose of gratifying a mere litigious disposition; but to promote justice byrestoring parties to the enjoyment of those rights of which they have been deprived, and redressing those real injuries which they shall have sustained. It would be even an injury, or at least attended with a loss to the plaintiff, to grant him a new trial, when the jury have found a Verdict against him in a case in which at most he is only entitled to. recover nominal. *329damages. It will only be done on pa3rment of the costs and the recovery of nominal damages cannot possibly compensate him for the loss of time, and ordinary expenses which he must necessarily incur in the prosecution of a second trial. Hence, courts have uniformly refused to grant new trials for such causes; as it would be to promote-injury and injustice instead of justice.
Before, however, this court will reverse the decision of the Circuit Court, in setting aside the verdict and granting a new trial, it becomes necessary to consider and decide upon the other reasons assigned there by the plaintiff, for asking a new trial of the court; and if any of them should be found sufficient to justify the order, for a new trial, it ought to stand.
The testator, David Elder, had taken the land in question, under -a decree of the Orphans’ Court of Dauphin county, as part of the estate of Bertram Galbraith, deceased, in right of his wife, who was one of the heirs of Galbraith, and the same reasons were filed for a new trial in this cause by the plaintiff’s counsel, that were filed in two other causes, on behalf of Martin and Henry Getz, defendants, at the suit ef James Wallace .and William Mien, plaintiffs, which were argued before this court at the same term with the present. The opinion of this court has been delivered in these cases, .and it is believed that upon reference to it, the insufficiency of those reasons will clearly appear. The questions of law raised by the counsel for the plaintiff, in this case are thus fully answered.
There is ¡perhaps some little differencebetween this and the other causes, but if there be it will be found to make nothing in favor of the plaintiff’s claim in this. In those actions the plaintiff’s claim* were founded upon bonds which had been given to them agreeably to the understanding of the parties, and articles of agreement entered into previously between them, for the sale of land therein mentioned. These bonds were given to secure a part only of the purchase money of the land, after three hundred and fifty pounds had been paid by the defendants, and on the same day of the date of a deed of conveyance of the land by the plaintiff to them, with a full knowledge on the part of the defendants therein, at and from the time of the original contract throughout, of all the liens and incumbrances complained of on the trial of the causes.
In the present action the plaintiff, ■ after having entered into articles of agreement for the purchase of the-land in question, with a like knowledge on his part of the incumbrances, and after having paid the whole of the purchase money, and the greater portion of it some years after he was to have had a deed of conveyance for the land according to the articles of agreement, has brought his ac-tiotrupon these articles of agreement to recover back the whole *330ef the purchase money so paid with interest, because as he alleges the defendants did not make a deed for the land clear of incum-brances. The purchase money, as it appeared upon the trial, which had been received by the defendants of the plaintiff, had been faithfully applied towards extinguishing the incumbrances complained of. The defendants alleged on the trial of this, cause, and gave some evidence of it too, that they had executed and delivered to plaintiff a deed conveying the land to him in fee simple, and with the exception of about sixty acres of the 1573 acre tract which was held adversely by one Taylor, against whom an action of ejectment had been-brought by the defendants, and which was pending at the time of the purchase, and is provided for, specially in the articles of agreement, that the plaintiff had been in the possession of the residue for many years past, by a person who obtained his license for that purpose. It was not pretended by the plaintiff on the trial that any proceeding had been had upon the recognizance against him, orthafihe was even threatened with it. Nor did it appear that any claim had been made upon this recognizance for more than twenty jmars previous to the trial, nor were any circumstances given in evidence to rebut the presumption of payment which arose from this lapse of time. Neither was it alleged in his declaration that he had been injured or affected in any way by this recognizance, or any other pretended in-cumbrances, The breach assigned by him in his declaration was simply that the defendants did not convey and assign the land in fee simple, clear of all incumbrances to him, according to the form and effect of the articles of agreement. The defendants plead that they had performed their contract in this respect, that is, that they had made such a conveyance and assurance of the land to the plaintiff; and evidence having been given on the trial of the cause by the defendants of their executing and delivering a deed, it was properly left as a matter of fact by the Circuit Court to the jury, to determine whether the defendants had conveyed or not; and if they should find that the defendants had not conveyed, that themthey ought to find for the plaintiff against the defendants, a sum sufficient to compel him to make a deed, to be released on a deed being made and filed in the Circuit Court, within some reasonable time, to be fixed hy them; but if they should find that the defendants had conveyed the land to the plaintiff, then they ought only to find nominal damages inasmuch as at the time of commencing the suit.no satisfaction had been entered on the recognizance, nor positive and direct evidence producen of its having been all paid, and time sufficient had not elapsed to raise a presumption to that effect; and that there was therefore cause of action although no real injury had been shown to have been sustained. It does appear to me that the *331charge of the court to the jury was as favorable to the plaintiff as he had any right to claim. The jury, under this charge of the court, must have been convinced, from the evidence given on the part of the defendants, that a deed of conveyance for the 1571 acre tract of land, was executed and delivered by the defendants to the plaintiff. By this deed of conveyance the plaintiff is invested now for aught that appears to the contrary, with the title which David Elder the testator had for this land discharged from all in-cumbrances created, done or suffered by him or the defendants. More than this, it would seem from the articles of agreement he had no claim to; for as to incumbrances arising from titles para-, mount to that of David Elder, the plaintiff was willing to take at his own risk. The order of the Circuit Court which set aside the verdict of the jury and granted a new trial is reversed, the verdict for the defendants reinstated,' and judgment of this court entered dp on the same,