Dec. 1830.

#### William Williams v. Noah Beeman, et al. Admrs. of Noah Beeman,

From Pitt*

In an action by the vendee against the vendor for ft breach of the covenant of quiet enjoyment, the rule of damages, when there is an eviction from the whole estate, is the purchase money paid .by the vendee.

But when the eviction is only of a part of the estate, as of an estate for life, there is as yet no rule of damages established.

Whether interest upon the purchase-money can be recovered, depends upon the circumstances of each case. Ordinarily it is given where the vendee is liable to the rightful owner for the profits.

A venjlee who has been evicted by paramount title, can, from his privity- of estate, recover on a covenant made to his vendor by the person from whom the latter purchased.

But in such a case, where the intermediate vendee sold at a less price than he gave, held, Ituirisr, Judge, dissentiente, that his vendee could recover of the original vendor- on]}' the purchase money paid by him.

The case of Phillips v. Smith. (1 Law Repos. 475,) approved and folj- - lowed.

This was an action for the breach of a covenant of quiet enjoyment, contained in a deed from the intestate of the Defendants to James G. Sheppard, dated December 4th, 1817, whereby in consideration of g4,125, he had conveyed to the vendee the land from which the Plaintiff was'afterwards evicted. The plaintiff offered in evidence a deed from Sheppard to John Glasgow for the same land, and upon an equal consideration, dated December 20th, J817, and a deed from Glasgow to himself, in consideration of g>S,500, dated the 15th of February, 1825.

Robert White and wife having a title to the land liad, on the 6th of January, 1816, conveyed it to one W. J. Stanton, who immediately re-conveyed to White, in mortgage, for the purpose of securing the purchase money, and afterwards sold to Beeman&emdash;on the 4th of April 1826, a declaration in ejectment, at the *484instance of White, was served on the Plaintiff, and on the 4th of August following, he was evicted under final ° . process in that suit.

Upon the trial, the jury found specially, that if the measure of damages was the original purchase money paid the Defendant’s intestate by Sheppard, with interest thereon from the date of the deed, they assessed the Plaintiff’s damages to $6,383 79. If the same sum with interest from the service of the declaration, then they assessed the damages to $4,447 53. If the purchase money paid by the Plainliff to Glasgow, with interest from tho date of the deed, was the measure of damages, then they assessed them at $4.302. If interest was to betaken only from the service of the declaration in ejectment, they assessed the damages to $4,050. The jury also, upon both views of the case, viz : the Plaintiff’s right to recover the whole purchase money paid by Sheppard, & that paid by himself assessed damages contingently from the time of the eviction, and also they found the actual value of the land and the improvements at the time of .serving the declaration, and at the eviction.

His Honor Judge Norwood, upon the verdict, rendered judgment for the Plaintiff for $4,475 55, being the purchase money paid by Sheppard to the Defendant’s intestate, with interest thereon from the service of White’s declaration; from which judgment the Defendant appealed.

The cause was argued at the last term by Hogg for , the Appellant, and Gaston for the Plaintiff.

Cur. vuiT. adv.

Henderson, Chief-Justice.

In actions between the vendee and his immediate vendor, upon the covenant for quiet enjoyment, it is the settled law of this State, that the value of the lands, at the time of the sale, shall be *485the measure of the damages; and in cases of actual sales, the purchase money is conclusive evidence of that value. This is the case where a covenant or warranty is annexed to an estate in fee, and the eviction is the whole estate. What may be the rule, where there is a partial eviction of the estate, as the recovery-of a life estate, or other interest less than a fee, or where the covenant is annexed to an estate less than a fee, is, as far as I know1, not determined by our Courts. The interest upon the purchase money is merely incidental, and depends on the circumstances of each case. It ordinarily runs during the time that the tenant is Halle for the profits to the rightful owner.- When he is not so liable, the profits are set off against it. Had this action therefore been brought against Glasgow, Williams’s immediate vendor, it would have presented no difficulties, governing ourselves by former decisions. Is the case varied by its being brought against. Beeman, a remote vendor, and whose estate, with his covenants annexed thereto, have come to Williams ? I think that it is not; for Beeman cannot be bound to pay to Williams more than Williams ought to receive, if he has money in his hands belonging to some other person, there is no reason why it should be paid to Williams. Now it is settled, that the purchase money paid by Williams to Glasgow, is the measure of Williams’ damages, and the fact, that he is substituted to the estate of Sheppard, and to the covenants entered into with Sheppard for its enjoyment and protection, does not thereby substitute him to Sheppard’s claim to damages, in case the latter had been evicted. He is only substituted to Sheppard’s covenants to redress his own, not Sheppard’s injuries, in regard to the estate.— But as there is no privity of contract between Williams & Beeman, the injury of the former cannot exceed the liability of the latter upon his covenant. But it may fall short of it. Neither would the case be varied, if the action in this case had been brought by Sheppard, as it is said it *486mighl; be. For Sheppard baring sold to Glasgow, and QiaSrr0W to Williams, he, Sheppard, could only claim an ^ A * indemnity, which is the amount of the consideration moncy paid by him who is evicted. And on this ground alone, or that he is trustee for the person evicted, can the action be sustained in his name. In either case, Williams' injury is the one to be compensated.— Should it be asked, what is to become of the excess left in the hands of Beeman — for it is certain that he has given nothing for it; — it is answered who can claim it ? Not Williams ; for under the rule established by our decisions, he has no pretence to receive if. Not Sheppard; for he sustains no damage by the bad title, further than he may he compelled to comply with the covenants in his deed. And it would be strange that he should he placed in a better situation by selling a bad title than a good one. For had the title been good, he must have been content with his loss upon his re-sale. Should it turn out to be bad, could he then regain his whole purchase money ? In fact, the difference between' what he gave and what he got for the land is sunk, is extinguished, and there is no person who can receive it, by making a re-sale at a reduction in the price. The first vendee submits to the loss, and it can therefore form no part of a claim to an indemnity.

As to interest in this case, it should commence from the time the declaration in ejectment was served. From that time and not before, the tenant is liable for mesne profits, as the eviction was by White under a mortgage from a former proprietor of the estate, under whom both Plaintiff and Defendants’ intestate claimed. And in mortgages, where the mortgagor is in possession by the consent of the mortgagee, he cannot be made liable to the mortgagee for mesne profits, as he is not a trespasser, a wrong-doer, but a quasi tenant to the mortgagee. Williams therefore received the profits to his own use up to the time when White's declaration in ejectment waffs served.

*487lam of opinion therefore, that the Judge erred in making the consideration money paid by Sheppard to Beeman the measure of the damages. He should have taken the consideration money paid by Williams to Glasgow) to- wit, $3,500 with interest from the 4th April 18£6, the time when the declaration in Ejectment was served.

Haul Judge, concurred.,

Ruffin, Judge,

dissentients. — I do not propose to dis - cuss at large the intricate question involved in this case | but content myself with barely saying that I cannot concur in the opinion of the Court. It is known, t!iat the decision in Phillips v. Smith (1 Law Rep. 475) was made with much hesitation, and by a bare majority. Both of the Judges with whom I now sit were of a different opinion. I admit, that I should then have coincided with them. On covenants relating to personal things, the actual damages sustained by a breach are recovered. Thus the value of a specific article at the time it ought to be delivered, or the value of slaves 'at the time of eviction, are the uniform measures of damages. I conceive, that when we give the personal remedy by action of covenant on a warranty of land; we adopt all its consequences $ and among them, that the party evicted shall be indemnified for.his loss. The covenant for quiet enjoyment is peculiarly applicable to terms for years ; and when the term is half gone, it is plainly unjust that the covenantee should recover the price he paid for the whole term. It seems to be a principle of natural justice, that he who has contracted for an indemnity in, the most extended terms, should not be restricted to a partial one, by mere construction. But in relation to warranties in deeds for the fee simple, a rule was adopted in the case alluded to, which has been considered a settled one. It professes to he drawn from the principles of the common law, applicable to pure, warranties, k the action of *488 warranties charla. To its authority I .yield; and upon its authority I found myself in the present case. I think the opinion of my brethren a departure from it. The vajue at the time of the sale is the measure there prescribed. It ought to operate both ways. If the vendor be not liable for more, he ought not to be for less. I understand it to be admitted, that if his immediate ven-dee be the person evicted, he is still liable for that. I do not see why he should not be equally so to the as-signee of liis vendee. Does the assignment change his covenant? it runs with the land; and he who buys the land, buys the covenant. He gets the whole of it. But itis said, that the assignor in such case cannot recover from the. first vendor more than the evicted vendee gave for thé land; because this is all the assignor would be obliged to pay the assignee, and therefore he has a complete indemnity. This is changing the rule essentially. Itputs it upon the amount of the loss, not the price paid. It would seem to me, that whoever buys land with a covenant adhering to it, takes with it all the advantages which it conferred on his assignor. It is so in personal contracts ¡ for we do not inquire what the assignee of a bond gave for it — the obligor must pay him the whole. If we are not to follow Phillips v. Smith out to all its consequences, then we ought to recur to the true principle of giving the real value at the time of eviction ; and if that were the opinion of the Court now, I should give my assent. That rule is too just to all parties to be wrong. We ought to recur to it, or adhere to the other, which has superseded it. Put a case upon the new one. Suppose Sheppard had sold to Wiliams without warranty. In that case, Sheppard is not bound to pay any thing to Williams upon eviction. Is Beeman released too? He must be, if he be liable to pay to Sheppard only what the latter is bound to pay to Williams. Then all warranties of land sold under execution are gone. I cannot think so.

Per Curiam. — Det the judgment below be reversed.