delivered the opinion of the Court:
The deed for which it is stipulated this note was given, is in the usual form, and contains a covenant of general warranty, and also a covenant against incumbrances. The deed professes to convey the premises presently, and is absolute. The grantor held the premises under the will of her late husband. And we have decided under the peculiar wording of that will that she had an inalienable life estate in the premises, which did not pass by the deed; and it is now insisted by the maker of the note, who is the grantee in the deed, that the consideration of the note has failed to the extent of the value of such life estate.
Two questions arise here: First, was the covenant against incumbrances broken ? and second, if it was, then was there a partial failure of the consideration ? It seems impossible to answer either of these questions in the negative. The deed purported to take effect immediately. It professed to convey an estate immediately, and would have conveyed it had the grantor been capable of conveying such an estate. This she did not and could not do. As to the life estate, the deed was as inoperative as if it had been vested in a third person. Had this life estate been vested in a third person it would have been an incumbrance, and the covenant against incumbrances would have been broken instantly. Upon this point there is, and can be, no controversy. Is it any different because she held the life estate? Clearly not. The effect and consequences must be precisely the same in either case. Here was the incumbrance of the life estate still subsisting against the deed, which she did not and could not convey by it, and so, necessarily, the covenant was broken. Counsel made the point, though he could have been hardly serious in it, that the covenant was inoperative until the deed took effect as a conveyance, which he said was at the time of the death of the grantor. These very covenants were inserted to meet the contingency, that the deed might not take effect according to its purport. Suppose a deed should never take effect, as a conveyance, for the want of an estate in the grantor upon which it could operate, would it be contended that the covenants could never take effect?.
If the consideration of the note was the entire estate, and it was incumbered by this life estate, then the consideration has failed to the value of the estate which he did not and could not enjoy; or, perhaps, to state the case more accurately, if there has been a breach of a covenant in the deed for which the note was given, then the defendant has a right to recoup the amount of the damages which he has sustained by reason of such breach. That was the value of the estate for the time during which he was kept out of the enjoyment by reason of the incumbrance.
The costs incurred in the prosecution of an unsuccessful lawsuit for the recovery of the estate, of course, cannot be set off against the note. It has no connection with it.
The taxes paid previous to the time when the defendant obtained possession should also be allowed.
The judgment is reversed and the cause remanded.
Judgment reversed.