The Judges delivered their opinions.*
This case presents the question, what is the measure of compensation in the case of a warranty of a freehold estate, and an eviction of the warrantee ? This, as far as I am informed, is the first instance in which that question, in an action of covenant, has been presented to the Supreme Judicial Tribunal in Virginia, for adjudication. It is a question of great importance, and entitled to a most careful consideration. Although it has never been the subject of direct adjudication, yet, in several cases,
Judges, whose opinions are entitled to great weight, have incidentally given their opinions upon it. The first of these cases, is that of Mills v. Bell, 3 Call, 322. In that case, by a contract between Bell and Mills, in February, 1778, the former agreed to sell to the latter, two tracts of land, which he agreed should contain 300 acres, and for which he was to make Mills a sufficient title the next November. Mills was to pay for the land, £ 500; one hundred down, sixty
The next case, in which this question appears to be alluded to, is that of Nelson v. Matthews, 2 Hen. & Munf. 177. There, the purchaser got the very land contracted for, and was not evicted from any part. But, there was a deficiency in quantity, for which he claimed a discount from the purchase money. He was relieved to the extent of the deficiency, according to the average value of the land, at the time of the sale, as ascertained by the report of commissioners. A part of the land had been conveyed by the vendor, with general warranty; the residue by another, from whom Matthews had purchased; but whether with warranty or not, does not appear. Judge Tucker, in delivering his opinion, in this case, says: “ If, indeed, there had been the full quantity of land in each tract, and Nelson had been evicted of a part by a title superior to that of Matthews, the proper estimate of his damages would have been according to the actual value of the land recovered; for, then it might have been precisely known.” And, again: “ Whereas, if the money had been paid, and the purchaser had been evicted by a superior title, I should have thought the value ought to have been fixed, as it might have been, at the time of eviction.”
This subject was again adverted to, in Humphreys v M’Clanachan, 1 Munf. 493. In that case, M’Clanachan sold to Humphreys, two land warrants, which had been located; to a part of which, another had a title, not known to the vendor. The purchaser filed his bill, claiming a deduction from the purchase money on that account, which was allowed according to the value ascertained by the price given; the real value not appearing to be different from that agreed upon. Judge Tucker, there remarks: “ the point most strongly contested in this Court,
It may be remarked, that the rule thus stated to exist, has no sort of influence in the decision of those cases; and of course, that question was not, in any of those cases, necessarily considered, and probably not considered at all, but taken for granted. Yet, it might be supposed that those Judges, particularly Mr. Pendleton, who was familiar with the practice of the General Court, long before the Revolution, spoke from their knowledge of some settled practice in the old General Court, upon that subject. Such a rule could only have grown up in actions of covenant upon real warranties, certainly not in actions of warrantia chartse, or voucher, since the law as to those remedies was clearly and uniformly settled to be otherwise. At the time, however, when this dictum was thrown out in the case of Mills v. Bell, it could not be known to any of the Judges, that any action of covenant, on a real warranty, had ever been brought in the old General Court. For, in the case of Daniels v. Cook, 1 Wash. 306, in 1794, (which was an action of covenant, upon a warranty by
The Judges who have announced the rule, that, upon a warranty, the measure of damages is the value at the time of the eviction, seem to have considered, without examination, that a harsh rule of that sort existed at law, to be moderated according to reason and justice, whensoever a, Court of Equity could reach the case. Indeed, Judge Tucker, in Humphreys v. M’Clanachan, whilst he admits the rule, as he had stated it to be in Nelson v. Matthews, expressly declares, that such damages are vindictive. Accordingly, in every case in this Court, in which the purchaser, whether he had a deed with warranty, or not, has claimed a compensation for lands lost by eviction, or for a deficiency in quantity, he has been compensated according to the value at the time of the contract; and the Court, under the conviction that justice, in no case, required a greater compensation, has, to avoid the force of the
If I had not been informed by one of the Judges who sat in the case, that Crenshaw v. Smith, 5 Munf. 415, was wrongly reported, I should have considered that case as entitled to weight, as an authority in point, to shew, that upon a warranty and eviction, the value at the time of the purchase was the measure of compensation. It is, however, at all events, another case to shew, that when the question of compensation is referred to a Court of Equity, that rule will be adopted. The land, for which compensation was there sought, was sold; it had increased, and was increasing in value, at the time of eviction, and the value at the time of the sale was allowed.
If there be no such rule at law as alledged in Mills v. Bell, and we were now at liberty to adopt a rule according to the very right of the case, it cannot be doubted, that the rule ought to be the same, both at law and in equity. There is no such rule at law, established by authoritative decisions in point. No such compensation is known to have been given at any lime in Virginia, with the sanction of the Supreme Judicial Tribunal; nor in England, in any case. Indeed, there is no case in England, where any personal remedy has been allowed upon a mere real warranty. The declaration of Chief Justice Parsons, of Massachusetts, that an action of covenant would lie in such case, for which he cites two cases from Brownloio’s Reports, seems to, be a mistake; for, in both those cases, the actions were founded on express covenants to save the lessee harmless, &c. Nor do I perceive any thing in those
To ascertain this, we must enquire, what was the real import, at common law, of a contract to warrant upon a conveyance of a freehold estate; the measure and mode of compensation, when the warrantor failed in the performance of his contract, and the reasons upon which such measure was adopted. Warrant was a technical term, having its own peculiar signification, and without the use of which, the contract, imported by that term, could not he created, unless in cases in which the law implied the contract. Co. Litt. 384, a. The import of the word, when applied to freehold estates, was “that the warrantor would, upon voucher, or by judgment in a writ of warrantia chartse,- yield other lands and tenements to the value of those that shall be evicted by a former title.” Ibid. 365, a, and 366, a. The contract to warrant had the same effect in all respects, as if the party had contracted in the terms of this definition, if such a contract were allowed, and the specific execution of it could be enforced. Co. Litt. 366, a; Ibid. 389, a. Such a contract was not permitted in relation to any interest, other than freehold, because no other interest could be claimed in a real action; and voucher lay in none but real actions, except in cases of wardship. Co. Litt. 101, b. The writ of warrantia chartse also lay only for a tenant of the freehold, and was only used when voucher did not lie, because the tenant was not impleáded, or because he was impleaded in an action in which -it was the policy of the law to prohibit delay, and therefore forbid the voucher; and it lay in such cases, only because the voucher did not lie. Vin. Abr. tit. Warr. Char. D. It was then supplementary to, and in lieu of, voucher. If the word warrant was applied to chattel interests or personal property, it operated as a personal covenant for the title, not because such was its strict technical mean
In enforcing the covenant of warranty, the law was thoroughly settled, that the recovery should be of lands and tenements of the value of the lands warranted at the time of the warranty made, without regard to the increased value at the time of eviction, by the discovery of mines, buildings or other improvements, or by any accidental accessions, as in the case of the warranty of a wardship, and a new inheritance afterwards falling to the ward. Vin. Abr. tit. Voucher, T. 6, passim. And this benefit the warrantor had in all cases, unless he lost it by omitting to aver in his pleadings, that it was, when warranted, of less value than at the time of pleading; which was, (if he could have pleaded it and failed to do so,) an admission, that the value remained the same as at the time of the warranty. But, if he could not have pleaded the fact, the judgment was according to the value at the time of the warranty; as, if the voucher demands the lien and demurs upon the
Thus, it seems, that the utmost amount of the value .of the recovery which a purchaser could have against the vendor upon his warranty, was the value of the land at the time of the contract, and the damages for which he might be responsible to the successful demandant; and, that as to his improvements, he was entitled to recoup them against the damages for which he was responsible, to the amount of the damages; but, for the excess, if any, he had no remedy.
The case of an exchange may be supposed to be an exception to these rules; but, it is not every exchange implied in law a warranty, 4 Co. Rep. 221, by which the land given in exchange was specially bound to warranty, and also a condition, so that, if evicted in part or in whole, the party might enter into all the land given in exchange, for
Thus stood the law in England when Virginia was settled, and is now our law, unless there be something in the circumstances of our country which makes it unfit for our situation, or unless our statute laws have abrogated it. There is nothing in our situation which ought'to vary the law, since that law is nothing more or less than the execution of the contract,-according to the terms agreed .upon by the parties; and I think, as I shall presently shew, that the common law, as to the measure of compensation in such cases, is founded on good reason, and conforms to the spirit of the same law in other cases. We have no statute which can be supposed to affect this question, except that of 1734, which, “for the more easy prosecution of real actions,” takes away ^all essoins, views and vouchers.” If this statute abolished the remedy by warrantia chartse as well as voucher, it would be equivalent to a prohibition of a contract of warranty, since all the remedies for enforcing such a contract would be taken away;, and a warranty, since that time, annexed to a freehold estate, would bp, to all intents and purposes, a personal covenant, on the same principle that it always was personal, when used in relation to a chattel interest or personal property. But what, in that case, would have been the fate of contracts previously made, in respect both to the remedy and the measure of compensation ? That remedy was not prohibited either by the terms or policy of the statute; the sole object of which was, to benefit the demandant in real actions, by making the proceedings more easy and simple, and by. avoiding delays, as appears from the whole context of the law. The Legislature could not have intended to take.away incidentally a beneficial remedy, which did not interfere with the policy of the statute. The warrantia
But, admitting that warrantia chartse as well voucher were abolished by the statute, or that they are prohibited by any policy arising from the circumstances of the country, or that any other consideration justifies now the allowance of an action of covenant, or a warrantia chartse, at the election of the party, it would follow that the same measure of damages or compensation should be adopted, whether the action were in the one form or the other; for, precisely the same reasoning as to the intent of the parties, and as to the effect of a breach of the contract, would apply to both cases. Otherwise, the strange injustice would follow, if the old remedy was abolished, that the .mere substitution of a new remedy would vary the substantial rights of the parties; and the first recovery on the new remedy might, upon a contract in the same words, be three or four times the value of the last recovery on the old remedy. The Legislature, if they abolished the old remedy, or the Courts, if they abolished it, would, in effect, in such ease, malte a new and different contract for the parties; unless, upon the new remedy, the same compensation, in substance, were given; or, if both remedies existed, and the party had his election to pursue either, then, by the more authority of the Court by which this new remedy would be given, the party might recover twice, or even in some cases, ten or twenty times as much in value, upon the new remedy, as he could upon the old. This, indeed, would be to Legislate, and not to administer the law.
This view of the subject would probably not be doubted, unless upon the supposition, that the English law upon the subject of warranty, was founded in principles peculiar to the feudal system. Whatever influence those principles may have had in establishing the rule, that the com
The cases of contracts for the delivery of stipulated quantities of personal property, which notoriously fluctuates in the market value, at a future period, and upon the breach of which the party is responsible for the value, at the time of his failure, have no application to the question under consideration. For there, from the nature of the contract, it is certain this fluctuation was in the contemplation of the parties, and that they intended to take the hazard of a rise or fall in the price. This consideration would influence the terms of the contract; and the vendor
To apply these principles to the case at bar. Upon a contract for the sale of land, all the facts known to the parties, as to its" present and probable future value, enter into the consideration of the price. If any accidental circumstances, not foreseen, should enhance the value, that could not have enhanced the price, and the purchaser cannot be properly said to have purchased the advantage arising from such circumstances, or the vendor to have sold and •warranted it; and in case of eviction, it cannot be said that his loss, as to the increased price, arose solely from the failure of the vendor. For, without these circumstances, that increased value would never have existed. The loss of his purchase money, and of the rents and profits for which he is responsible to the true owner, is all the loss which necessarily resulted from the violation of the con
The result is, that the measure of damages is, and ought to be the same, in case of eviction, whether they be claimed in an action upon a warranty, or covenant of seisin, or of power to convey, or for quiet enjoyment; that this measure was settled by the common law, upon principles of justice and sound policy, to be the value at the time of the contract, without regard to the increased or diminished value, or to improvements; and the rents and profits, for which the tenant is responsible to the successful owner; that as to any rents and profits, for which he may not be so responsible, the vendor would not be responsible, since the purchaser would have enjoyed them by virtue of his contract; and as to his improvements, if reasonable, they will be discounted against the rents and profits; if not, the - vendor should not be responsible for them, and so the vendor cannot, in any case, be responsible for improvements; and that, with us, the value ought to be ascertained, (owing to the circumstances of our country,) not by the English rule, according to the issues beyond reprises, but according to the value in gross, the best standard of which is, in general, the price agreed upon by the parties, at the time of the sale. And, that when it does not otherwise appear what was the value of the rents and profits recovered from the purchaser, or for which he may be responsible, interest upon the purchase money from the time that such responsibility for rents and profits existed, should be given in lieu of the rents and profits. In this case, such responsibility commenced upon the original entry of the appellee into the land, and the rents and profits are not as-
These views apply only to cases of sales made bona fide, and to a remedy by an action founded on the contract.
The case of a fraudulent vendor would be subject to other considerations, in an action on the case in the nature of a writ of deceit.
The judgment should, therefore, be reversed, and judgment rendered for $> 800, with interest at 6 per centum, per annum, from September 22nd, 180Í), and costs, subject to the credit admitted by the parties.
The first objection is, that no action of covenant lies on the warranty, the remedy being by warrantia charlee, or by suit in Chancery, or action on the case to recover the money paid, the consideration having failed.
I have not had it in my power, not having access to the necessary authorities, to investigate fully, this ancient and obsolete doctrine of loarrantia chartse.
In Colee Littleton, 365, note 1, by the editor, I find She origin of this doctrine stated. It is there said, that according to the civil law, the purchaser may call on the seller to warrant, who was substituted as defendant, and the purchaser might leave the defence to him, or defend with him, or if evicted, he had a claim upon the warrantor for complete indemnification. The precise sum is sometimes agreed on by the parties in their contract; but pen* alties of this kind are not encouraged, and it is in the breast of the Judge to moderate or increase the sum; but it cannot be increased, either by express contract or by equity, to more than double the property evicted. The warranty-in England, it is said, is of feudal extraction, being derived from the obligation the Lord was under to defend the tenant’s title to the land, and if evicted, he was bound to
In Hobart, 22, it is laid down, that warrantia chartse wiM he upon all actions real, and may be brought either before or hanging those actions, though voucher only lies in the actions; and this, though he may vouch in the action that is brought against him; and if he recover, or after-wards lose in the action wherein he voucheth, he shall have a writ of habere facias ad valentiam within the year after recovery in warrantia chartse, though he cannot have execution until he take loss. And this is the safest course, because he shall bind the land from the teste of the warrantia chartse; whereas, in the other case, it is only bound from the time of the voucher; and it is also there laid down, that though he bring warrantia chartse, he must not rely on that alone, but must also vouch, and request plea according to his case.
If this covenant was in the form of a pure warranty, I doubt whether warrantia chartse lies in this State since 1734, when voucher was done away by our statute, 4 Hen. Stat. at Larg. 403; and if I am wrong in this, yet since that statute, and considering the entire disuse of that ancient remedy, its incompatibility with the situation of this country, and the forms and manner of conveyancing here, I am persuaded that no one, at this day, considers that the use of a set of words, differing but very slightly from another set, will entirely alter the nature of the liability of the vendor, on the one hand, or of the rights of the purchaser on the other, in case the covenant to warrant is broken; and that the general sense of the country,' and sound principles of justice, therefore, require, that all covenants of this kind, however worded, should be considered, as to the remedy in case of eviction, as personal covenants by the vendor; that is, that a personal action of covenant will lie on such warranty.
But, if I am in an error as to this, the warranty here is not in the usual form of a pure warranty, but it is a cove
This, too, is a bargain between two citizens of Virginia, for a sale of lands in Ohio. A warrantia chartse, voucher, &c., I presume, could not lie between these parties in Virginia, on a sale of lands in Ohio; and there is no proof that it would in Ohio, even if they lived there, or that such remedy exists there. Besides, how could a citizen of Virginia he vouched there ? And, if he is not warned, though the tenant may lose the land, he cannot recover in value against tire vouchee. 2 Sound. 32. And, what has also great weight with me, is this: A personal action of covenant may be brought on a real covenant of warranty, where the party, neither by voucher, nor warrantia chartse, can have recompense; as, where the disturbance or eviction is by a lease for years. 2 Brownl. 158; Hob. 28. There must be a suit against him, and an eviction at law, at least of an estate for life. Now, if he could neither vouch, nor bring warrantia char tie in this State, of lands lying in Ohio, both parties living here, then the personal action lies. But, again; if the lands lay here, the eviction is not by a suit at law, but bill in Chancery; and, I have seen no case, nor do I believe any can be found, of voucher in such suit, or of an execution ad vatentiam on a warrantia chartse, where the recovery of the land has been by bill in equity. It was then a mere personal covenant, or must be treated as such, as much as if it had been a lease for years, or, as in the cases referred to, where the only remedy was by personal action.
The next question, which relates to the proper measure of damages, is a very important one, and has never been directly decided, that I can discover, in this State.
But, how stands the fact ? From the verdict, and the facts agreed, it appears, that one Martin held the legal title; that the appellant, Stout, as early as 1805, and long before he got a deed from Martin, sold the land to one Hollenback; but, whether he had then purchased, or paid Martin for it, does not appear. Hollenback sold to one
In this situation, Martin, ignorant of these transactions, conveyed to Stout, on the 22d of September, 1809, believing himself in possession, by his tenant, and Stout, on the same day, to Jackson. We know not what the law of Ohio, on this subject of possession by Claypole, is; if is not found, lkit, it is believed, that the law of no civilized society, w'ould declare such a deed void, so as to prevent the title from passing. This is not a case of defect of title at law. The legal title passed, but there was an outstanding equity; and, if there is a distinction between a warranty of seisin and a warranty for quiet enjoyment, (which, I confess, I am not casuist enough clearly to perceive,) this is a case in which the legal title passed, and the party could not sue for a breach of covenant, until " ousted by reason of this outstanding equitable title.
, What, then, did Jackson do ? Being the lawful owner, he went on the land, as every lawful owner has a right to do, and, by peaceable means, acquired the possession. From this, he has been removed, in the year 1813, by a decree of the Supreme Court of Ohio.
The verdict finds damages for the plaintiff, according to the value of the land and improvements, at the time of eviction, to the amount of $2,937 50 cents, with interest from that time, in case that ought to he the standard of damages; and $800 with interest from 1809, if the purchase money is the proper standard; which question is
My present opinion is, that the latter is to be the stan- ' dard. It is true, that if the loss has been greatly increased by a large expenditure of money beyond what a prudent and just man' ought to make, according to the circumstances of the case, there might be some difficulty in doing exact justice to both parties. Indeed, it must be admitted, that whichever standard is adopted, entire justice will not always be attained. Nothing is found in this case, and I must presume, therefore, that nothing exists, to vary it from the general proposition above stated.
This question has been differently settled in different States. If I err, therefore, I have the consolation of being supported by those, who, under a similar state of things, have thought as I do; and as the law in this State will not be settled in this case, I will have an opportunity to abandon my present opinion, if, with better lights, I shall see
This is an action of covenant; concerning which, it has been well observed, “ that as the good of society requires a punctual performance, and that no person should be allowed to rescind or break through his contracts, so the law has provided a remedy, by action of covenant, in which the injured party is to recover damages for the violation of the contract, in proportion to the loss he has sustained.” Bac. Abr. tit. Covenant; 3 Black. Com. 157.
In this action, then, the general question is, what loss has the party really sustained?
But, we are told, that this is an action of covenant on the sale of real estate in fee simple, and that it is brought on the deed of conveyance itself, and that whatever may be the law of this action of covenant generally, as to sales of personal property, or in other cases, such as leases for years, &e., and the loss really sustained in such cases, by reason of the breach of such covenants, yet, as anciently a party to whom lands had been conveyed in fee, might bring his warrantia chartse, we must see what he could have recovered in that action; and although that action has been out of use for a century, and the covenant, at least as regards this deed, is a mere personal one in this respect, yet the remedy is to be varied and the damages assessed, according to the nature of the recovery, in that obsolete action. This will be proper, if that remedy, founded on ancient feudal doctrines which hare long since passed away, and which never existed here, gives a proper and • just rule in regard to those who contract for a personal covenant and for a just remuneration, according to the principles consequent on such an undertaking; otherwise, not.
I cannot, at present, bring my mind to acquiesce in the doctrine, that it does give the correct rule. That remedy had its own law, founded on feudal and obsolete reasons. It gave nothing, for instance, when the vouchee had no
All these doctrines, doubtless, suited the feudal times. But, suppose a man sells lands, receives the purchase money, and puts the purchaser into possession, under a covenant to convey, and before conveyance, there is an eviction by title paramount; no warrantia chartse lay in such case, there would be then no such standard to compare by; and what then would give the rule ?
But, I am not fully satisfied, that, testing the question by the nature of the recovery in this ancient action, except as to increased value, by reason of improvements, I should not be supported thereby. If the warrantor, on •being vouched, enters into warranty, generally, that is, makes defence, without saying any thing more, he will be held to warrant, according to the then value; but, if the estate is more valuable, by reason of improvements, there he can plead that matter. If, however, this is not the case: I have seen no case which goes to shew, that he can alledge that, from general causes, the land has become .more valuable, and that for that cause, he is not bound to enter into a general warranty. I believe no such case can be produced; but, on the contrary, that, by analogy to cases I shall produce, he could not.
To simplify my ideas, on this subject, I will suppose, that A. has thirty acres of land, unimproved, each acre of equal value, say @100; and sells ten of them to B. for @ 1,000. They all remain unimproved, until B. is evicted; at which time, from general causes, they have appreciated in value, and are then worth @ 200 each acre. Will B. get only five acres of the twenty adjoining, and yet held by A., or ten acres ? If the latter, as I apprehend he would, then he gets land worth @ 2,000 at the time of eviction, though he gave but @ 1,000 for that evicted.
Assignment of dower is a warranty in law, and so is an exchange or partition of lands. 2 Saund. 38, b, note 5; Co. Litt. 384, b. If a widow is sued, she may vouch; and, if she is evicted of her dower, she will. recover one-third of the remaining two-thirds. In every exchange, lawfully made, this word excambium importeth a warranty, and also a condition. 4 Co. Rep. 121, Bustard’s Case. The latter gives re-entry, and the other voucher and recompense; and this in respect of the reciprocal consideration, one land being given in exchange for the other; hut, it is a special warranty on the vouchee, and, therefore, the voucher shall not recover other lands In value; and the; same law is in case of partition. Hence, it follows, that if three acres are given for three acres, and one is evicted, the condition is entirely broken, and the person evict,ed may re-enter for the whole; but, if he vouches, he shall recover in value but according to the loss. In partition, however, if each parcener has three acres of equal value, and one is evicted of one acre, having-prayed in aid the other, she will only get half an acre, so as to make all equal. So, if three acres of equal value descend, and the heir endows the widow of one, and she is impleaded, and vouch, and is evicted, she will recover only the third part of the two acres. I3ut, in case of exchange, each party is a several purchaser, and each-warrants the whole to the other; and, therefore, he shall recover to the value of what is lost.
Let me ask, whether it would have been tolerated in either of these cases, for the vouchee, or the parcener, who was prayed in aid, to say, ££true, you are impleaded, and may he evicted; it is also true, that your lands have appreciated, from general causes, as well as mine; but, if you
But, the party, in the case of exchange, could re-enter for the whole, and this by the same law which, by the other remedy, it must be contended, would only give him one-half.
I incline to think, therefore, that the vouchee must enter into a general warranty, unless when he can plead, that the lands sued for have been increased in value by improvements.
But, the case cited from Johnson’s New York Reports, admits, that in an action of covenant, there can be no difference as to increased value, whether arising from general causes, or improvements. If the law of warrantia chartse, however, was different from what I suppose (concerning which, I shall not further dispute,) it might have been justice in feudal times; but, it was not the kind of justice dispensed by the civil law, which, I think, affords a standard better adapted to our times, and to the office of an action of covenant, as by it, complete indemnification was given; and ought not, therefore, to influence us in the decision of what is the proper standard of indemnification, in that action. Such a standard as that insisted on, I believe, has never been in the contemplation of parties contracting in this State; and, I think, I am justified in this belief, by the opinions (though they may be called obiter,) of the Judges of this Court.
No case of an action of covenant, on a warranty in a deed, in which this question has been made, has ever come before this Court, that I am aware of; not, I presume, because no such case has occurred, (for, I am told, they frequently do,) but, because the universal understanding, and justice of the country, has sanctioned the above opinion.
The same doctrine is laid down by Judge Roane, in the case of Humphreys v. M’Clanachan, 1 Munf. 500, as settled in the case of Mills v. Bell. But, this was an executory agreement, as in the case of Mills v. Bell, and the value settled on equitable principles, according to the circumstances of the case.
So in the case of Nelson v. Matthews, 2 Hen. & Munf. 177, Judge Tuckek lays down the same general doctrine, admitted to be law in Mills v. Bell. But this was a case, not of eviction, but of a deficiency in the land; so that there being no land lost, which could be seen and valued, the average price per acre of the whole, was the only standard that could be resorted to.
The case turned on a title bond, set out in the amended cross-bill, which is not noticed in the report. The principal tract of land, which was the great, if not the sole object of the purchase, was conveyed by deed, with general warranty; the consideration expressed being £300, the whole purchase money stipulated for, as far as appeared in the cause. But the title bond extended, also, to lands adjoining, some of them, and possibly all, standing on inchoate rights. From this circumstance;—the peculiar phraseology of the bond as to these adjoining lands;—and from the will of Crenshato directing this debt to be paid;— there was much reason to doubt, whether Roberts sold any thing more than his rights in this land, and it was of a part of this land that the alledged eviction had been. The case, then, was placed by the argument, on the ground, that the bill was to be considered in the nature of a bill for a specific execution, and as it appeared that the party could not convey the 100 acres, compensation ought to be made.
In this view, the case was one like Mills v. Bell, with this difference, that in this case there were doubts as to the propriety of any compensation at all.
The question now before the Court, was neither made in the argument, nor was it considered by the Court. The present, I believe, is the first case, in which that question has directly come before the Court.
I should not be governed by the dicta of the Judges in the above cases, if I saw good reasons to depart from them; but I do not. I cannot say, when a jury is called on to estimate what was the value, at a given day, of a particular tract of land, which a party has lost, and of course has lost something of that value, and has sustained damage to that amount, that an estimate of such value and loss can
Suppose a part is evicted, which cuts off the only spring attached to the dwelling, and the most valuable part of the land and improvements, both absolutely necessary to the enjoyment of the residue, either for the purposes of comfort or profit. Is the average price to give the rule, or must not the intrinsic value of the land lost, added to its relative value to the residue of the tract, give it ? And how can wo carry this back to the date of the contract? The parties never fixed a value on the land, thus disjointed and cut to pieces. It cannot he said, this or that is the value they fixed to it in that situation. The jury must first speculate on what it is probable the purchaser would have valued it at, and whether he would or would not have purchased, tmder such circumstances, and then say that this Was what he had agreed to give for it, before it can be said that this was the value fixed by the parties. This, I think, would be like speculative compensation, rather than fixing real damage. But, if the jury in this ease, ought to fix the actual loss, by taking into consideration, not only the intrinsic value at the time of eviction, but its relative value also, (and I cannot see how, in justice, they could do otherwise; indeed, the Judges in Nelsonv. Mai thews, all concurred in opinion, that in such a case as I have supposed, the actual as well as relative value is to give the rule,) they may fix the value beyond the original purchase money of the whole; so that the plaintiff in this case, might possibly recover more for a part, than he would, had he been evicted of the whole, and the purchase money, the supposed value agreed on, had given the standard. We cannot combine the estimate of the value in such case, with the purchase money. All will then be doubt and
But, suppose the purchase is of a house and forty feet *n a town> n°t producing one cent of profit, except from the buildings, which have been consumed by fire before the eviction. Is the seller to make good this loss to the purchaser, by returning the whole purchase money and interest, not even having credit for the rents, or to pay only the value of the naked lot, which was all that the purchaser lost by the eviction, leaving him to stand his own insurer against accidents of this kind, or any other depreciation in value at the time of eviction ? What does the purchaser lose ? The property of a given value at the time of eviction, at which time the covenant is broken and action accrues.
Again; A. sells to B. 40 feet of ground in the Main street of Richmond, valuable only as a building lot, and sold as such. . To make it avail any thing to the purchaser, he erects buildings, and is evicted. Has he only lost his purchase money and interest? Or, has he lost what the lot, with the buildings, would have sold for, the day after eviction ? Certainly the last; and the only question then is, whether that is the real damage he has sustained in consequence of the bad title, and breach of contract on the part of the defendant? Could there be any doubt of his right to recover that, especially, if as in this case, such loss had not arisen from a paramount title, unknown to the defendant, but in consequence of a previous sale made by him ? I think that would be the only safe and just measure of the injury in either case; but surely there could be no doubt in the latter. The vendor could not say, you ought to have waited for 20, 30 or 50 years, so as to be sure there was no adverse claim, before you occupied the property, in the only way you could occupy it, so as to make it of the value of one dollar to you.
It will not do to say, that such risque to vendors will put an end to the sale of real estates. If they do not wish
What would be the proper estimate in case the purchaser, after notice of an adverse claim, goes on to make valuable improvements, or without such notice, lays out sums which no prudent man ought to expend, it is not necessary for me to speculate about. Extreme suppositions, out of the usual and fair course of human transactions, are not to vary the plain principles of justice, applicable to ordinary occurrences.
It would not be tolerated, for the vendee to prove, that at the time of the purchase, he could, with the same money, have purchased another tract of land, then offered to him, and which, even at the time of eviction, was worth so much; or, to say, that, if he had not been evicted, he would, at the time of the trial, and when he gets compensation, have sold it for so much.
These would be considered unjustifiable speculations, however clearly proved, and non constat, that he would have done either the one or the other. But, all will admit, that he lost property of a given value, at the time of eviction, and that he has, therefore, actually sustained damage to that amount, by the failure of the vendor to warrant and defend against the adverse claim, as he covenanted to do. To decide, that he shall not make good that loss, it has been very aptly said by the counsel, would be to annul, instead of enforcing the contract.
It appears to me, that the original price or value has nothing to do with the question; and, that much of the error in the arguments I have seen, arises from the supposition, that if a sum of money was given, that sum, at least, with interest, must be recovered. It is true, that the price may sometimes forma correct guide; as, when the purcha
But, a Court of Common Law does not rescind; it enforces agreements; and, by an action of covenant, makes full compensation for the actual loss sustained by their violation.
The question that has been so elaborately discussed, is one of great importance; and, it is to be regretted that, there being but a bare Court, it is not to be finally settled in this case. No case has been shewn, in which an action of covenant has been sustained upon a technical warranty at the common law; and, if this were a warranty, in its strict sense, of lands lying in Virginia, it might be insisted, that this action would not lie. But, as the lands warranted, lie in another State, the laws of which are not found in the verdict, it may he inferred, that the parties used the term warrant, in the deed, in its vulgar, and not in its technical sense; and, that the action of covenant, upon general principles, was the proper action in this case. The covenant consists of two parts. First; a warranty of the title; and, secondly, that the grantor had power and authority to convey. It will he perceived, however, that the plaintiff has not, in alledging a breach of the covenant, treated it in any other light than as a covenant of seisin, at the time the deed was executed. Considering it as a warranty at the common law, great diversity of opinion has existed, as to what was the substantial recovery upon a warranty of that character; and, it is supposed, that, in an action of covenant, equivalent damages ought to be recovered. The
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Judge Cabell, absent from indisposition.