The opinion of the Court was delivered by
Baylies, J.This is an action of covenant broken, brought on the covenants contained in the deed from Dorr, the defendant, to Richardson, the plaintiff, dated April 7, 1827, of the whole lot number 75, (except 100 acres previously sold by said Dorr to Simeon Stearns) drawn to the first Division of the Right of Charles Jenkins, in the town of Charleston, late Navy, in the County of Orleans. The covenants are in these words : “ I am lawfully seised in foe of the “ aforesaid premises; that they are free of all ineumbran- “ ees; that I hare good right to sell and convey the same “ to the said Isaac RicJiardsnn.” The plea is, that the defendant has kepi and performed all and each of the covenants contained in said deed, to wit, at Danville aforesaid ; that the defendant, at the time of the delivery of said deed to the plaintiff, was lawfully seized in fee of the said granted premises — that they were free from all incumbrances, and that lie had good right to sell and convey the same to .the plaintiff.-Issue to the country.
The plaintiff, to support the issue on his part, gave in evidence to the jury his deed from the defendant, containing said covenants. And the defendant, to support the issue on his part, gave in evidence a deed from Col. John Rankin to the defendant of the land in question, dated the 21st day of November, 1799, and acknowledged and recorded the same day. This deed, on the face of it, purports to be a vendue deed, executed by Col. Rankin, as Sheriff of Caledonia County, and Collector of the one cent tax, laid to support government during the year 1797, and for other purposes: this act was passed 10th Nov. 1797. — (See Tomlin’s Ed. vol. 2, p. 25G.) The consideration of this dee.d, as expressed, was $3, 56, being the amount of the tax on the lands in question, and costs of sale. And it appears that the defendant took possession of said lands under this deed, in the spring of 1822, and continued his possession till he deeded to the plaintiff, and put him into possession. When the defendant took possession, his ven-due deed had existed 23 years; and he now contends, that *17from the age of this deed, and his possession under' it, it is presumed he had a good title, when he deeded to the plaintiff; and this •presumption of title is to stand, until it is overpowered by evidence adduced by the plaintiff. ■ -
But the Court cannot recognize this as law: the defendant not setting up a claim of title, nor taking possession of the lands ünder his vendue' deed for twenty-three' years, if any presumption can be raised from these facts, it is a presumption against the defendant’s title. The defendant must show, that the Sheriff, in the collection of the tax, did those' essential things, which the law required him to perform, as Collector, before he executed his deed to the defendant,if he omitted any pre-requisite., the deed is void.
The 20th section of the aforesaid act required, “ Thai “ the several Collectors should, within thirty days next after “ the ending of such vendues for the sale of lands, lodge a “ true and attested copy of siich sales, together with their “ advertisements thereof, with the several town, or County “ Clerks, as the case may be $ whose duty it shall be to re cord the same at the expense of suc'h Collectors.” To prove that this section was complied with by the Collector, the Collector himself, Col. Rankin, -was offered by the defendant, as a witness, and testified, that he left a copy of hi's sales, and the newspapers containing the advertisement with the County Clerk, within thirty days, as required by law; but he thinlcs, on looking at it, that the copy now in the Clerk’s office is not the one he left. Here I would observe,, that Col. Rankin was the only witness to prove these facts, and he did not testify that he requested the Clerk to record the copy which he left, at his expenses nor that he had ever seen such record. . .
As the validity of this vendue title was called in question, and Col. Rankin, as Collector, had covenanted, in his deed to the defendant thus, — “ that I wifi, in my capacity aforesaid, warrant and defend'said land, to him the said Joseph II. Dorr, h'i's heirs and assigns, against the lawful claims or' demands of any person whomsoever,” he Was interested in the particular question that was agitated; and could not testify, if the plaintiff' had objected, without a release from the defendant.
Gov. Palmer also testified,.that, “on his taking possesson •of the Clerk’s office, in the year 1806 or 1807, lie found *18every thing in the office in great confusion, and spent much time in arranging papers, records, &c. — having overhauled every book and paper in the office — that he never saw the newspapers in the office which Col. Rankin had sworn he left there, and that he had some recollection, or impression, that at some period he had seen a blue book, purporting to be a book of said vendue sales, but could say nothing definite about it — could not say what became of it; and did not know but the book from the Clerk’s office was the one he had seen.”
Col. Rankin does not testify positively ; but “he thinks, on looking at it, that the copy now in the Clerk’s office is not the one he left.” This copy was offered in evidence on trial, but was rejected by the Court. Now let us inquire, 1st, Was this copy left by the Collector in the County Clerk’s office within thirty days next after the vendue sales, to be recorded ? 2d, Is it attested by the Collector, as a true copy of the sales ? On the title page of this copy aro written these words : “ A record of the collection before sale, and the sale of lands of the unorganized Towns and Gores in the County of Caledonia, for the Cent State Tax, granted by the General Assembly of the State of Vermont, at Windsor, in October, 1797, by John Rankin, Esq. Sheriff of said County, and Collector of said Tax.”
On the first page is copied the Treasurer’s Warrant to said Sheriff to collect said tax, on the lands described.— Then comes the Sheriff’s Advertisement, published in the newspapers. Then each subsequent page is divided inio columns differently headed — some relating to the sales of land — some to the redemption of land, after it was sold j and some to the deeding of land, not redeemed.
On the last page is the following certificate : “ State of Vermont, Caledonia County ss. County Clerk’s Office, July 1, 1805. I hereby certify that the foregoing are true copies of the Record of John Rankin’s collection and sale of the unorganized Towns and Gores in said County, at the Cent tax, granted by the’Legislature, at Windsor, in October 1797. Attest, Elkanah Phelps, Clerk.”
This copy carries internal evidence, that it was not left m the County Clerk’s office within thirty days next after the sales, to be recorded; such are the entries in the six last columns on each page : these entries relate to the redemp • *19tion of land sold, arid to the deeding of land not redeemed ; none of which took place within thirty days next after the sales. The deeding, by statute, could not be till a year after the sales : And from these entries, I infer, that the copy was made and left, in the County Clerk’s office, after the lands were deeded; probably about the time the Clerk made 1ns certificate. Moreover, it does not appear that the Collector, under his hand,'ever attested this copy, as a true copy of his sales. The County Court did right in not admitting this copy to go to the jury as evidence. This copy being excluded, there was no legal evidence, from which the jury could find, that the Collector complied with the requisitions of the 20th section of the act aforesaid; and, without such compliance, the Collector had no power to execute his deed to the defendant of the lands in question. The defendant does not pretend he had any other title than by this deed, and actual possession of the land, under it, for about five years, claiming in fee. As the defendant derived nothing from the deed but colour of title, was he enabled, by Ms possession and claiming in fee, to give a deed of the land which would convey an estate in fee % Certainly not. Then he has not kept the covenants contained in his deed upon which he is sued. — The first is, “ I am lawfully seised in fee of the premises.” This is called the covenant of seisin, and, to satisfy its words, the defend - ant must show,that, when he made this covenant,he had,not only an estate in fee in the land which he deeded, but also, that he was seised of the same, and had a right to the pos - session. If the defendant had an estate in the land, less than a fee, or was seised by wrong, he was not “ lawfully seised in fee of said premises,” and broke his covenant, when he made his deed. The general rule by which to estimate the damages for the breach of this covenant is the consideration paid for the land, and interest; but to -this rule there are exceptions.—(Garfield vs. Williams, 2 Vt. Rep. 327—Catlin vs. Hurlbut, 3 Vt. Rep. 403—4 Kent’s Com. 462, 464.)
The second covenant is, “ that they are free of all én-cumbrances.” — This is called, a covenant against encumbrances, and is broken by an out-standing mortgage upon the land, which had not been paid. The rule of damages, in some of the Slates is, the money paid by the plaintiff to the *20./raortg'agee) t° Clear off the mortgage; but if the plaintiff /has paid nothing, he can recover only nominal damages.— (Delavergen vs. Norris, 7 J. R. 350.—Stanard vs. Eldridge, 16 J. R. 254.-Prescott vs. Trueman, 4 Mass. R. 627.)
. * This rule has often been recognized by our Courts as law. But, beside mortgages, there may be other encumbrances upon the land, for which the grantee should recover damages, on this covenant — (See 2 Mass. Rep. 97 — 4 Mass. Rep. 627.)
The third covenant is, “ that I have good right to sell and convey the same to the said Isaac Richardson as aforesaid.” This is called a-covenant for title, “ and is an assurance to the purchaser, that the grantor has the very estate, in quantity and quality, which he purports to convey, viz : in- this case, an indefeasible estate in fee simple.” — (Howell vs. Richards, 11 East. 642.) If this assurance be false, the covenant is broken, and the purchaser has his remedy for the damages which he has sustained. .
. These covenants are of vast importance to the purchaser of lands, to secure him against the misrepresentations of the vendor, as to his title. They are personal covenants, and are broken as soon as the deed is-given, if broken at all, and are not assignable. We do not construe these covenants as they have been construed in some of our sister States. It has been said by Ch. J. Parsons, in Manton vs. Hobbs, 2 Mass. Rep. 433, that, to sustain a covenant of sei-sin, it is not necessary “ to show seisin under an indefeasible title; that a seisin in fact is sufficient; and that if, at the time the grantor executed the deed, he had the exclusive possession of the premises, claiming the same in fee simple, by a title adverse to the owner, he was seised in fee, and had good right to convey.” To the same effect were the opinions expressed in Twambly vs. Hinley, 4 Mass. Rep. 441, and Prescott vs. Trueman, 4 Mass. Rep. 627. In Willard vs. Twitchel, 1 N. H. Rep. 177, the Court say, “ The covenants in our deeds that the grantor is the lawful owner, that he is seised in fee, and that he has good right to sell and convey, have always received a construction that makes them merely synonymous. Each of them amounts only to a stipulation, that the grantor has such a seisin that the land will pass by his deed. If the grantor, at the time of the conveyance, has actual seisin, whether by right or by *21wrong — whether under a valid title or by disseisin, the land will pass by his deed, and neither of these covenants is broken.”
I cannot believe, that these decisions, which were made in Massachusetts and New-Hampshire, are in accordance with the common law. It is said in Shep. Touch. 170, If one be seised of land in fee, or possessed of a term of years, and he doth alien it, and supposing he hath a good estate he doth covenant that he is lawfully seised, or possessed, or that he hath a good estate, or that he is able to make such an alienation, &c. and in truth he hath not, but some other hath an estate in it before; in this case the covenant is broken as soon as it is made.” ^Ch. J. Hosmer, in JLockivoodvs. Sturdevant, G Conn. Rep. 3®#, speaking of the cases in Massachusetts, says, “ I am constrained to observe, that notwithstanding the veneration I entertain for the highly accomplished jurist who expressed the above opinions, I cannot yield to them my assent. That which shows covenants of seisin, and of right to convey, to be broken, is their falsity. If the covenants are true, they remain inviolate ; if they are not true, they are broken. On the same principle, if they are entirely false, they are wholly violated ; and if partially untrue, they are broken but in part only. All this is self-evident. Although the covenantor should have had the actual possession of the premises, and an ideal, or imaginary right, founded on a supposed title that was merely colourable, yet this is not a legal seisin in fee; and nothing short of this will support a covenant, that the grantor is seised in fee simple, because nothing short of this proves the covenant to have been true. This construction necessarily results from the unequivocal words of the covenantor, and the unquestionable object of the covenant. A seisin in fact of an estate in fee simple, if the word seisin intends any thing more than possession, is an expression without meaning, where there is no seisin in law. In the nature of things, there is but one species of seisin in fee, and that necessarily is, the possession of an estate conjoined with such legal interest as the term fee simple denotes.”
I cannot but accord with the sentiments which are here expressed by Ch. J. Hosmer. If we depart from the common law in giving a construction to these personal cove. *22nants, which are usually contained in a deed of land, we may make them mean any thing or nothing. If there be a local ¡aw in Massachusetts or JVew-Hanypshire,by which they expound these covenants, that law is no authority for us.
Judgment of the County Court is affirmed.