I. It is claimed by the defendants that they were divested of their title by reason of a lien, against which the plaintiffs had covenanted, and that the measure of their damages is the purchase price of the boat.
That a lien, to-wit: the lien in favor of Winchell, Upson & Co., did exist when the plaintiffs sold to the defendants, is not denied. That the boat was libeled by Winchell, Upson & Co., and a decree obtained in their favor against the boat, is also not denied. But the claims under which the boat was really sold were the seamen’s claims, because they were paramount (although subsequent in time) to that of Winchell, Upson & *237Co., and were sufficient to absorb all the proceeds. It is said, to be sure, that the seamen would not probably have libeled the boat, if it had not been libeled by Winchell, Upson & Co.; yet, if that were conceded, it would not change the fact that the boat was really sold to satisfy their claims. The defendants had the advantage of the entire proceeds of the boat. Suppose the boat had not been partially destroyed by fire, and had been sold to pay seamen’s wages and other preferred liens which had accrued while the boat was owned by the defendants, to the amount of the full value of the boat; should the defendants recover its value again because Winchell, Upson & Co. held an inferior lien against which the plaintiffs had covenanted? The defendants would not make such claim. The trouble in this case arises from the fact that the boat had been partially destroyed by fire, and what was left — the hull, machinery and fixtures — did not sell for much, and although the defendants had the benefit of what was left, they feel as if they had lost their boat substantially through plaintiff’s fault.
Now if that is so, it is because it was burned (so far as it was burned) through the plaintiff’s fault; for, as we have seen, it was only what was burned that was lost to defendants. In this matter of loss by fire, the defendants’ theory is, that, as they had been wrongfully divested of the possession of the boat, and could not protect it against fire, those who had been the means of their being wrongfully divested of the possession should be responsible for it.
1. damages : caus™ate If property is wrongfully taken from the owner, and destroyed by fire, the wrong-doer is, of course, liable for its value. But then his liability does not arise from the fact of its loss by fire, but from the tort which preceded the loss.
2__._. • It was through the plaintiffs’ negligence, it is true, that the defendants’ possession was divested; still, if they are liable, it is only for the damages resulting from such negligence. In this connection it should be observed t)iat there is no evidence that the burning of the boat was in any way the result of the seizure. But even if it *238was, the damages were not proximate.. The seizure was indeed the proximate result of the plaintiffs’ negligence in not discharging the lien; but if the burning was the result of the seizure, it was the indirect result — some other cause intervening which was the proximate cause.
3 vekdob war'rantyfexístmg lien. II. The decree in favor of Winehell, Upson & Co. was for $251.50. On the day of that decree the defend-an^s owefi the plaintiffs the notes in suit, amountjng to $3000 and accrued interest, which notes had been overdue more than four months. The defendants should, therefore, have paid this Winehell, Upson & Co. claim. They could not say that it was disputed, and excuse themselves on that ground. By the decree the plaintiffs were concluded, both as to the validity and amount. They authorized defendants to confess the decree. At all events, the defendants did confess it, and have estopped themselves to say that they were not authorized. It appears further that one C. F. Manderson, who held for collection for plaintiffs the notes now in suit, informed defendants, as attorney for plaintiff's, that defendants might pay the Winehell, Upson & Co. claim, and that the same should be deducted from the notes. This fact, however, as testified to by Manderson, we do not deem material. Defendants had a right by law to discharge the incumbrance, and set off the amount against the notes. This rule has been repeatedly held in regard to real property, and we see no reason why it is not applicable to personal. Baker v. Radsback, 4 Ind., 533; Whisler v. Hicks, 5 Blackford, 100; Dunn v. White, 1 Ala., 645.
In Owens v. Salter, 38 Penn. St., 217, the court went still further. A purchaser of land held a deed with covenants of warranty. The land was incumbered by taxes when conveyed. The purchase money not having -been all paid, and having become due, it was held to be the duty of the purchaser to pay the taxes (which were a lien against which the vendor had covenanted), and prevent a sale. We are of the opinion, therefore, that the defendants should have paid the Winehell, Upson & Co. claim, and the costs which had been made thereon.
*239While they owed the plaintiffs that amount, which was overdue, and the law allowed them to apply it upon the incumbrance, or so much thereof as was necessary, we see no reason why they should withhold the money, and allow the property to be sold. They stand in no different position than if the plaintiffs had furnished them the money, they advancing it with authority to apply it upon the incumbrance if they saw fit.
We are of the opinion that the plaintiffs’ motion to set aside the general verdict, and for judgment in favor of the plaintiffs upon the notes as prayed in the petition, should have been sustained. Upon defendants’ appeal, the case is affirmed: upon the plaintiffs’,
Eeversed.