The opinion of the court was delivered by
Lowrie, J.— This action is for the purchase-money of land, and the jury have found that the defendant was deprived by paramount title of §400 worth of the property. It is argued that the conveyance showing no warranty against this injury, there is none. Generally, we-presume that the contract to convey is merged in the conveyance, but there may be incidental covenants that are not so merged. In this contract to convey, there is a covenant against this very injury, and it is found that the grantee, in accepting the deed, did not intend to relinquish it, and it is not merged.
Moreover, it did not pass to the second vendees as a covenant running with the land, for it is not in the conveyance to either the first or second vendee. It is therefore a mere personal covenant between Colvin and Schell, and the latter is'entitled to the damages occasioned by its breach. He could get them by way of equitable defalcation without such a covenant, on the ground that he is deprived of part of the thing for which the consideration was to be an equivalent.
The only difficulty in the way of this result arises from the fact that Schell has sold the land. If he has conveyed it, then Colvin’s covenant of warranty has passed to the vendees, and they may possibly be entitled to sue him for the same thing.
In the present case, the difficulty is easily managed, for Schell’s vendees have not paid their purchase-money, and they have a * complete remedy against their vendor, if they have suffered damage ; and if they pay over the purchase-money in full to him they cannot then go back upon Colvin for this defect of the title.
Judgment affirmed.