This was an action of covenant brought by Simms against Fonville in the Rutherford Circuit Court. The declaration states that Fonville had conveyed by deed a tract of land to Simms, in which he had covenanted that he would warrant and defend the same against the claim of all persons whomsoever, and that it was free from all encumbrances. The breach assigned in the declaration is, that at the time of the conveyance the land was encumbered with a better title, vested in one Constant Hardeman, by whom an ejectment had been commenced, in which suit Hardeman had recovered possession.
To this declaration Fonville pleaded, —
1. That Benjamin Williams had covenanted to warrant the same land to him, and had employed counsel who offered to appear to the action of ejectment and show that Hardeman's title was not the best, which Simms had refused to permit.
2. That there was no record of any such recovery as that alleged in the declaration; and, *Page 274
3. That the land was not encumbered by a better title in Hardeman.
To the first plea Simms demurred, and on the others he took issue. The demurrer was sustained, and the issues all found in favor of Simms.
It also appears from a bill of exceptions, that on the trial of the cause Fonville offered to prove in mitigation of damages, that on the trial of the ejectment he, by his counsel, offered to appear and show that Constant Hardeman had not a good title to the land, but that Simms had refused to permit him to do so; which evidence so offered was objected to and refused by the Court. A judgment was pronounced against Fonville, to reverse which he proseceuted this writ of error. We are of opinion that the Circuit Court have not erred. The evidence offered, if it had been received, ought not to have had any effect. The circumstance of offering to appear and show on the trial of the ejectment that Hardeman had no title ought not to lessen the damages, unless in this suit he would proceed further and show by proof the same thing which he had proposed to do in the other suit, to wit: that this title was better than Hardeman's, which if done would bar a recovery; but this he did not offer to do.
These observations will also apply to the judgment on the demurrer which was put in the first plea.
The judgment therefore must be affirmed.