This case was before the court on a former appeal. 37 N. D. 121, 163 N. W. 723. In the first trial the jury found a verdict against defendant for nearly $800. He made a motion for a new trial. ' The court granted his motion and he appealed. This court held that when a party does not want a new trial, he should not ask for it, and dismissed the appeal. Now the verdict is for $1,360 and interest, and defendant wants a third trial.
*650He assigns numerous errors, but the only real question is on the sufficiency of the evidence. On December 1, 1914, for an express and agreed consideration of $1,900, defendant conveyed to the plaintiff a quarter section of land in 27-154-97: S. 1/2 of N. W. 1/4, N. E. 1/4 of N. W. 1/4, and N. W. 1/4 of N. E. 1/4 of N. E. 1/4.
The deed contained a covenant of good title and quiet possession and covenant that the grantor was well seised in fee of the land, but in truth he was not seised in fee of the land, and the plaintiff was not given quiet possession. At the time of the transfer one half of the land was seized by the ruthless, aggressive, and onrushing Missouri river, and the other half was corroded and broken so that it was of little value. The plats and the evidence show that by changing its course so as to straighten its channel, the river runs diagonally across the land from the southwest corner to the northeast comer. The part of the land not corroded or covered by the river is of little value. It cannot be farmed to any advantage.
The complaint avers, and the evidence shows, that to induce the plaintiff to purchase the land, defendant knowingly misrepresented its' character and condition; that plaintiff relied on such representations. The court charged the jury thus: “Before the plaintiff can recover, he must establish by a fair preponderance of the evidence that the representations charged in the complaint were made by defendant to him, and that' they were false, and that the plaintiff believed the representations to be true and relied on them, and was thereby indued to make the trade or purchase.” The court charged on the measure of damages: That it was the difference between what the land would have been worth if as represented, and what it actually was worth at the time of the sale. The charge was altogether favorable to defendant. The plaintiff was not bound to rely wholly on the alleged fraud. He had also a right to rely on the covenants in his deed and to recover according to the same measure of damages.
In an action for a breach of covenants in grants the detriment for the breach of covenant of seisin, of right to convey, and of warranty of quiet enjoyment, is deemed to be: (1) The price paid by the grantee, dr, if the breach is partial only, such proportion of the price as the value of the property affected by the breach bore at the time of the *651grant to tbe value of tbe whole property; (2) interest thereon at 6 per cent. Comp. Laws § 7149.
In this case it cannot be maintained that only 60 or 80 acres of tbe land were affected by tbe breach; on tbe contrary, by dividing tbe land on tbe longest diagonal and subjecting it to continuous erosion and inundation, tbe breach affected and lessened tbe value of every acre of tbe land. Tbe whole property was affected by tbe breach. Hence, on tbe covenants in tbe deed, tbe measure of damages was tbe price of tbe property, less its actual value, with interest on tbe same at 6 per cent; and that is tbe rule of damages submitted to tbe jury.
Fraud or no fraud, on tbe pleadings and the evidence tbe plaintiff was clearly entitled to judgment. He was entitled to insist on the fraud and also on the covenant in bis deed. If tbe false representations were made in good faith they were equally as injurious as if made in bad faith. In such a ease tbe good or bad faith of affirmation is of little consequence. Tbe charge of tbe court is in no way injurious to tbe defendant, and the verdict is well sustained by tbe evidence. Tbe only real question was on the amount of damages, and tbe specification regarding tbe sufficiency of tbe evidence does not point to any insufficiency on tbe damage question; nor does tbe evidence show any insufficiency. There is no reason for a third trial of this case. There must be an end to litigation.
Judgment affirmed.
Geaoe, J. I concur in tbe result.