The first question presented by this record is a very simple one. Who is entitled to sue for a breach of the covenants of seizin and against incumbrances contained in the deed from the defendant to Louis H. Bristol ? It is conceded that these covenants do not run with the land; that they were broken, and that a right of action accrued the instant the deed was delivered. To whom did it accrue ? Not to the plaintiffs certainly, for at that time the corporation was not in existence. The deed was to, and the covenants therein were with, Louis H. Bristol. The legal title, not only to the land, but to the rights of action arising from the conveyance, vested in him and in him alone. That he was a mere trustee matters not; it only shows that the right of *129action was in liis name as trustee, and that the amount collected would be a fund in his hands for the cestui que trust.
The objection that the defendant might resist a suit brought in the name of the trustee on the ground that he personally paid no part of the consideration is more imaginary than real. The consideration was in fact paid to the defendant, and he acknowledged in his deed that he received it of Bristol. The fact that other parties furnished the money is immaterial. In contemplation of law, therefore, for the purposes of an action on these covenants, the consideration was paid by Bristol.
The statute, (Gen. Statutes, tit. 1, sec. 64,) authorising the assignee and equitable owner of a chose in action, not negotiable, to bring an action thereon in his own name, does not aid the plaintiffs. The plaintiffs are the parties beneficially interested in the right of action, but they are not assignees of a chose in action. Mr. Bristol conveyed the land by a quitclaim deed in the ordinary form, but he did not assign or attempt to assign a chose in action. Had he done so, and had the plaintiffs in their declaration alleged that they were the actual and bond fide owners of the chose in action mentioned therein, and set forth when and how they acquired title thereto, as required by the statute, their claim in this respect might have been sustained. As it is, we think it cannot be.
We might, and ordinarily would, stop here; but as the parties, for the purpose of avoiding further litigation, unite • in requesting us to decide all the questions in this action,. we will proceed to dispose of them upon their merits.
We will first consider the covenant of seizin and of good' right to sell.
The doctrine that a deed by a tenant in common of a portion of the common estate by metes and bounds, is inoperative as against his co-tenants, is firmly established. Mitchell v. Hazen, 4 Conn., 495; Griswold v. Johnson, 5 Conn., 363; Marshall v. Trumbull, 28 Conn., 183. Mineral and ore rights* when severed from the land and owned by tenants in i com-, mon, are real estate, and to them the same doctrine.- applies.. *130Adams v. Briggs Iron Co., 7 Cush., -361. Consequently, where the owner of land from which mineral rights have been severed, is a. tenant in' common with others of such rights, and conveys a portion of the land by metes and bounds, and also his share of the mineral rights therein, the deed, so far as such easement is concerned, is inoperative as against his co-tenants.
The deed therefore from James Blodgett to the defendant, dated April 2d, 1867, conveying as it does a portion “of the land owned by him, and which was subject to the mineral rights in question, and attempting to convey the whole of his mineral right in the land conveyed only, the co-tenants not co-operating therewith, was inoperative in respect to those rights as against the other owners.
It follows, therefore, without reference to the prior deeds, or to the fact that the defendant conveyed to Bristol less land than he received from Blodgett, that at the time of the delivery of the deed to Bristol, the defendant was not seized of the one undivided seventh part of the ore rights attempted to be Gonveyed thereby, and that his covenant in that respect was broken.
The next inquiry is, what is the rule of damages ? The general rule is, in actions on contracts, that the plaintiff shall recover the actual damage sustained. An action for a breach of the covenant of seizin in a deed is not an exception to this rule. It is doubtless true that in such actions generally the actual damage sustained is in fact the consideration paid and interest, because the party takes nothing by his deed. It is in its inception, and continues to be, a nullity. But if the party takes anything by his deed, directly or indirectly, by its own force or by its co-operation with other instruments or other circumstances, whether it be the entire .thing purchased or a part of it, its value must be considered in estimating the damages. Mitchell v. Hazen, 4 Conn., 496, is relied upon by the plaintiffs as an authority in support of their claim that they are entitled to recover the con..sideration paid and interest. A careful examination of that case has satisfied us that the court did not intend to establish *131an inflexible rule to be applied indiscriminately to all cases. They regarded the deed in that case as wholly inoperative. In that view of the case nothing less than the consideration paid and interest would be a full compensation. The consequences of a partial breach, the deed being effectual to some extent and for some purposes, were not considered by the court.
In ascertaining the actual damage it becomes necessary to consider what effect is to be given to the deed in the present case. The plaintiffs contend that that portion of the deed which attempts to convey an undivided portion of certain mineral rights is absolutely void. In support of this claim several cases in this state are cited. Mitchell v. Hazen, 4 Conn., 495; Griswold v. Johnson, 5 Conn., 363; Marshall v. Trumbull, 28 Conn., 183. In none of these cases was there any confirming grant by the co-tenants ; nor were there any circumstances, which the court regarded as sufficient, cooperating with the deed, to give it validity. In Mitchell v. Hazen, Hosmer, C. J., says, “ The deed passed no title, and in effect was an utter nullity.” That is indeed strong language, but it must be understood in its application to the facts of that case. The deed was by an administrator of a tenant in common, without any co-operation whatever, then or subsequently, of the co-tenants. Moreover the learned judge refers to Bartlett v. Harlow, 12 Mass., 348, as containing a correct statement of the question. A reference to that case will show that the court strongly intimated that the levy of the execution was not wholly void, but might operate as an estoppel, and that intimation was followed and the doctrine distinctly enunciated in Barnum v. Abbott, 12 Mass., ,474, and the same doctrine has been re-affirmed in subsequent cases. In Griswold v. Johnson, the language of the court is, “ The deed of this common estate by metes and bounds, the one tenant in common thus attempting to make a partition of the property without any co-operation of the other, is undoubtedly void;” thus clearly implying that the deed, if with the co-operation of the other tenant in common, would not have been void. In Marshall v. Trumbull, Hinman, J., says, *132“ Deeds and other conveyances of such property are not merely inoperative against the rights of the other tenants, when a partition is made, hut they are, as remarked by Judge Hosmer, undoubtedly void, and the other co-tenants may at all times so treat them.” The court certainly could not have intended to say that the co-tenants, after a confirmation by them of the conveyance, were at liberty to treat it as void. Their right to do so is clearly a privilege which may be waived ;* and having been properly waived, the conveyance is binding upon them, and, operating as an estoppel against the grantor, it vests a complete title in the grantee.
The only reason given in all these cases for holding such deeds void is, that they tend to prejudice the rights of the co-tenants. The rule should not be broader than the reason;, and when the reason does not exist the rule should not apply.
Mr. Washburn states the law on this subject as follows; “ Such a conveyance of the personal interest of a tenant, however, would be good as to all persons except his co-tenants, and, if not objected to by them, will be valid and effectual to all intents.” We think that is stating the doctrine too broadly— at least broader than the authorities will justify. The mere absence of objection on their part does not seem to be sufficient. Their assent, expressed by deed, or in some other proper manner, seems to be required.
In New Hampshire, as in Massachusetts,'the doctrine that such conveyances may be made valid and effectual by the act of the co-tenants, is well established. Great Falls Co. v. Wooster , 15 N. Hamp., 412 ; Whitton v. Whitton, 38 N. Hamp., 127.
In view of the authorities in this state and elsewhere, we think the true doctrine to be, that a deed by one tenant ip common of a part of the common property by metes and bounds, is inoperative as against the other tenants; but if the co-tenants, then or subsequently, by a suitable conveyance confirm the grant, the grantee still holding under his deed, it becomes, in effect, operative and binding upon all concerned.
The doctrine thus stated covers this case. The plaintiffs *133took and now retain the possession of the whole premises purchased, including the one-seventh mineral right. They have a lease from the owners of the remaining six-sevenths, so that the whole, for a term of years, vests in them. The other tenants also have by their deed confirmed the sale to the plaintiffs. They have thus solemnly waived their right to object to the conveyance, and, the defendant being estopped by his deed from calling it in question, there is no one who can controvert the plaintiffs’ title. In effect all technical difficulties are healed, and the plaintiffs receive in fact just what they purchased.
We have no occasion to determine the equitable rights of Marsh under his contract. If he has any equities, so far as they relate to the one-seventh interest now under consideration, they are not superior to the plaintiffs’ equities, and cannot prevent the confirming deed from having full effect as such.
For a breach of the covenant of seisin therefore, the defendant could be subjected to nominal damages only.
In respect to the covenant against incumbrances little need be said. We are inclined to think that the incumbrance is not sufficiently stated in the deed to save it from the operation of the covenant.
However this may be, it is not stated so clearly and fully in the deed as it is in the agreement for a deed. It is manifest from the report of the committee that it was the intention of the parties that it should be so stated, and that the omission to do so was a mistake of the scrivener, not designed, and not known to exist by any of the parties until after the deed was delivered to Mr. Bristol, nor till after his transfer to the corporation. To that extent therefore the petitioner in . the bill in equity is entitled to the relief prayed for.
• The Superior Court is advised to render judgment for the defendant in the action at law, and for the petitioner in the bill in equity.
In this opinion the other judges concurred.