The first question in this case, is, whether the defendant and wife, at the execution of the deed to the plaintiff, were well seised of the premises. The answer to the enquiry is so obviously clear and irresistible, that it can never admit of a doubt, unless the mind is first perplexed, by the adduction of irrelevant considerations.
The plaintiff’s action is founded on the covenant of seisin, in which the defendant stipulated, that he and his wife Clara, at the execution of the deed, were well seised of the premises. Were they well seised ? Most unquestionably, they were not. They had, several months before, executed a deed of the land, with covenants of seisin and warranty, to one Dunscombe ; and, by this act, deprived themselves of the seisin of the premises, so that their covenant was untrue, and broken instantaneously so soon as it was made. Whether the plaintiff, by the omission of Dunscombe to record his deed, and by procuring his own to be recorded, had acquired a title as against Dunscombe, is a very irrelevant question. If, by facts subsequent to the delivery of his deed, he had, the position would not be the less true, that the defendant and wife were not seised at the execution of the deed to the plaintiff. The plaintiff had right to the full benefit of his covenant; and is not obliged to enter into a legal controversy with Dunscombe or Dayton, in which he may be foiled, by proof, that at the date of his deed, he knew of the deed to Dunscombe. The surrender of the deed to the defendant, is likewise a perfectly immaterial fact. If by this act, the defendant had acquired title, it would have no bearing on the above question in this case, which, let it be remembered, is merely this, whether the defendant and wife, at the execution of his deed to the plaintiff, were well seised. But no title was thus acquired The legal evidence of title was given up; but the title in Dunscombe remained. Land once conveyed, cannot be retransferred, by a destruction of the conveyance; but a deed executed with all legal solemnities, is as requisite for this purpose, as if the evidence had not been destroyed. Botsford v. Morehouse & al. 4 Conn. Rep. 550. Coe *265& al. v. Turner & ux. 5 Conn. Rep. 86. The verbal agreement at the delivery of the deed to Dunscombe, was null, and of no legal effect.
In respect of the damages, it is a general rule, that the consideration is recoverable with interest; and this usually is just; but it may, and must admit of exceptions, where justice does not sanction the principle. The deed to Dunscombe was not recorded; of consequence, the plaintiff, unless he had knowledge of this deed, at the time of the conveyance to him, obtained a good title, by the registration of her deed. Now, what did the plaintiff know? Assuming that her knowledge was commensurate with those facts, which the exercise of common prudence and ordinary diligence must have apprised her of; the recorded deed to Dayton being sufficient to put her on enquiry ; (Sug. Vend. 498. Newland on Con. 511.) she must be presumed to have known, that there was an incumbrance on the land in question; that the deed of Dunscombe was given up; that he could never substantiate any claim to the property; and that the equitable title was in the defendant, to which he could, at pleasure, superadd the legal title, by coercing a deed from Dunscombe. Subjecting the plaintiff, then, to the extent of her knowledge of the facts, she is injured only by the mortgage of Dayton; and, indeed, this is the only incumbrance on the title. The just damages to which she is entitled, is, the amount of the debt by mortgage, be that greater or less; and if that has been paid, the damage is nominal only.
A reconsideration of the point of damages renders it necessary that there should be a new trial.
Peters, Brainard and Bristol, Js. were of the same opinion.New trial to be granted.