1. Pleadings: exhibits. First. It is objected that a demurrer to the defendant’s pleading, setting up a counterclaim, A i. • was sustained. The counterclaim, thus set up and plead, had its foundation in the breaches of the covenants of a deed of conveyance, and, therefore, such deed, ora copy thereof, should have been annexed, as an exhibit, to the pleadings. Rev., §§ 2920, 2963. A failure to do so was one ground of the demurrer. The defendant, without supplying the omission, thought proper to stand upon the order sustaining the demurrer. The objection is without force, and is accordingly overruled.
2. Covenant: breach: seizin. Second. It is objected that the court refused, upon the defendant’s motion, to set aside the report of the referee, but affirmed the same, rendering judgmen£ thereon for plaintiff. It is understood that the error here suggested and insisted upon goes chiefly to the points, that the facts found by the referee show that the title at law of the land sold and conveyed by the plaintiff to the defendant (and for which the note sued was given), was not in the former at the time of the sale, but still remained technically in McHenry, the trustee of Fouts, who attempted and intended to convey the legal title to Nosier, but failed to do so, because of an informal execution of the deed, resulting perhaps from negligence or accident.
It is claimed that, such being the case, it follows, as a conclusion of law, from the referee’s own finding of facts, that the consideration of the note sued is wanting, and that the defense plead should be sustained. But it is very well replied to this, that the defect complained of consisted simply in the informal manner in which the deed from the trustee to the plaintiff was executed; that it is not one that *217can ever result in disturbing tbe defendant in tbe quiet possession of tbe premises wliicli be is now enjoying; that Fouts, McHenry, Nosier, and all who should hold under them subsequent to plaintiffs deed to defendant and his possession thereunder, would be concluded from settingup any title to said land; that the defendant is the real owner, and would have no difficulty in compelling a correction of his title, at the expense of the party in fault, after his attention is called to the matter. Nevertheless, it is confessed that the facts show that here has been a technical breach of the covenant of seizin, which, although not expressed on the face of the deed, has been held under our statute to be concluded in the covenant of warranty; and whilst this would entitle the covenantee to nominal damages, which were awarded him, it would not give him the right to recover the whole of the consideration-money as the measure of his damages.
On this subject, Bawle on the Covenants of Title, pp. 100, 101, holds this language: “In cases where the failure of title has been such as to cause a technical breach of the covenant of seizin, yet not such as to have visited upon the purchaser any loss of the land, it would be obviously inequitable that he should be entitled to have the damages measured by the consideration-money, and, while receiving them, still retain the land for whose loss they were intended as an equivalent.”
Believing no error has intervened in the trial of this case, the j udgment is Affirmed.
Cole, J., having been of counsel, took no part in the trial hereof.