The first question is, whether, by the facts agreed, it appears that the defendant, at the time of his conveyance to the plaintiff, was seized of the land conveyed; and we are clearly of opinion that he was not. The land conveyed is bounded southerly by land of Edward Tucker-man, and northerly by land of Joseph P. Tolman ; and it is *508admitted that conventional lines had been mutually agreed upon by the owners of these lots, which did not, as was afterwards ascertained, correspond with their true lines. But the land conveyed was construed to extend to the true lines of their lots, and not to the conventional lines before agreed to. This was determined in an action between the present parties in a former suit. (See 9 Met. 150.) It follows conclusively that the defendant, at the time of his deed of conveyance to the plaintiff, was not seized of the land lying between the conventional and true lines. This land was in possession of Edward Tuckerman, claiming title thereto, at the time of the conveyance to the plaintiff, and it is expressly agreed, in the statement of facts, that Tuckerman was actually so seized up to that line. Of this land, therefore, the defendant was not then seized; for two parties cannot be actually seized of the same land, claiming the same by adverse titles.
The second question is, whether the defendant’s covenant of seizin extended to the whole of the land lying between the conventional and the true lines, or is restricted to part only. The clause in the deed, as to this point, is thus: “ It is understood by the grantee,” (the plaintiff,) “ that the covenants of warranty and against incumbrances, hereinafter contained, are to be considered as limited and restrained in their operation to that portion of the premises which lies immediately next to the land of Joseph Pope, and extending 320 feet therefrom.” It was contended by the defendant’s counsel, that the covenant of seizin was to be considered as limited in the same manner as the other covenants. If the parties had so intended, they would have so expressed their intention in the restricting clause. We cannot add to the language, unless it can be made clearly to appear that a word was omitted by mere mistake. Nothing of this kind appears in any part of the deed, but quite the contrary; for if the intention of the parties was to limit all the covenants alike, it would undoubtedly have been so expressed. There was a good reason, probably, why a distinction was made between the *509covenant of seizin and the other covenants; for if the plaintiff should have been evicted by a paramount title, it would have been a breach of the covenants of warranty, and against incumbrances ; a paramount title being an incumbrance. But such a title does not affect the covenant of seizin. Most decidedly, therefore, the construction of the deed, contended for by the defendant’s counsel on this point, cannot be maintained.
The third question relates Jo the amount of damages. The defendant’s counsel maintains that the plaintiff is entitled to nominal damages only, because, as it is said, he has suffered no actual damage, as he has conveyed, by a deed of release to Mary S. Jackson, all his right and title to the land in dispute without any covenant of warranty, except as to any person’s claiming from, by or under him. But we are of opinion, that such a rule of damage cannot be maintained on principle or authority. In the case of Medbury v. Watson, 6 Met. 246, it was proved that one of the plaintiffs had sold out his share of the property in dispute for the same amount which he gave; and it was objected that he, having sustained no loss, could not maintain the action for the defendant’s fraudulent misrepresentations, by which the plaintiffs were induced to purchase of him the property in question, at a price much exceeding its value. But it was decided, that he was entitled to recover for the injury occasioned .by such fraud, whatever disposition he afterwards made of the property; whether he sold it or gave it away. So, in the present case, the plaintiff had a right of action on the breach of the covenant of seizin, immediately after the delivery of the deed; and his release or sale of the property, years after, could not affect the amount of damages he was before entitled to recover. The plaintiff has a most just right to recover of the defendant, for the purpose of giving the amount recovered to Mary S. Jackson, or not, at his pleasure. We do not know, however, that the plaintiff will not sustain an injury by the failure of his title. It appears that he and Mary S. Jackson owned the land in question in common, and *510that they executed mutual releases, in order to make partition of the common property, and to hold their respective shares in severalty. Now it may be that Mary S. Jackson may be entitled to have a new partition. As to this, however, we give no opinion ; because all the facts, on which an opinion on that point would depend, are not stated; and also because the question is immaterial in the decision. The plaintiff has paid money to the defendant for the purchase of an estate to which he has obtained no title, and he clearly has a right to recover the amount of the purchase money, whatever he may do with it.
The last question is, what is the rule of damage ? The defendant’s counsel contend that it should be determined by the proportion in quantity which the land between the conventional and true lines bears to the residue of the land purchased. But this is not a just rule; for the value may be unequal. The true and just rule is, that the proportional value, and not the quantity of the several parts of the land, should be the measure of damages. The plaintiff therefore is entitled to recover a part of the purchase money, with interest, in the proportion of the value of the land between the conventional and true lines, and the residue of the premises. To ascertain this proportional value, the case, by the agreement of the parties, is to be referred to an assessor, who is to assess the damages according 'to the rule now laid down.
The assessor made his report at the November term, 1846, assessing damages at $189-92, in case the court should be of opinion that so much of the land recovered of Tuckerman by the defendant as was embraced by the covenants of warranty in the defendant’s deed, and enured by way of estoppel to the plaintiff, should be excluded in the assessment of damages; but if that portion of land was to be included, then at $227.66. The question presented by the report was argued and decided at the March term, 1848.
*511By the court.If, by any means, the party is restored to his land before the assessment of damages, though it cannot purge the breach of covenant, it will reduce the damages pro tanto.
Judgment for the smaller sum