#### HERMAN NEWBERN et al. v. R. L. HINTON.

(Filed 16 September, 1925.)

1. Appeal and Error — Burden of Proof — Evidence.

The appellant must show error in the Supreme Court on appeal, and where he has excepted to the exclusion of evidence, the record must show the relevance and materiality of the evidence excepted to, and its bearing upon the issues.

2. Same — Conclusions of Haw — Harmless Error.

The admission of testimony of a witness excepted to upon the ground that it contained a conclusion of law becomes immaterial when the law has been correctly stated by him.

3. Same — Instructions—Verdict.

Exceptions to the refusal of the trial judge to give appellant’s prayers for special- instruction cannot be sustained when the jury has found for appellant upon the evidence therein involved.

4. Deeds and Conveyances — Covenants—Warranty—Damages.

In an action to recover damages for a breach of warranty in a deed to lands upon the ground that defendant’s grantee, the plaintiff, had received complete reimbursement in the sale of the lands to another to the extent of the purchase price: Held, the covenant of seizin does not run with the land, and is broken when the deed is delivered if the grantor does not own the land at the time of his covenant, and the right of action accrues only to his grantee.

5. Same — Equity.

In an action for damages for breach of warranty of seizin of lands: Held, no equity arises for defendant when it appears that the grantee, plaintiff, has since sold the land to another, and the difference in the purchase price paid to defendant and the purchase price received is more than the amount in suit.

6. Deeds and Conveyances — Warranty—Breach—Choses in Action.

Where a covenant of seizin in a deed to land is broken, it becomes a chose in action, and is not assignable.

7. Deeds and Conveyances — Covenants — Warranties — Heirs at Daw— Purchaser — Fraud—Notice.

Where a defendant in an action for damages for breach of covenant in a deed to lands is one of the heirs at law of the deceased owner, and has obtained the title of the others by deed from them with knowledge of a probable caveat, he cannot maintain that he is a purchaser for value without notice of the defect in the title he has undertaken to convey.

8. Deeds and Conveyances — Covenants—Warranty—Breach—Measure of Damages.

In an action to recover damages for breach of covenant of warranty of title to lands upon allegation of part failure of title, or for the pro*109portion of tlie original purchase price represented by the failure» of title, the rule of damages recoverable is that proportionate part of the purchase price affected by the failure of complete title, with interest thereon, when the outstanding interest has not been bought in by the plaintiff.

Appeal by defendant from Granm&r, J., at January Term, 1925, of Pasquotank.

This is a civil action by plaintiffs, purchasers, against the defendant, seller, on an alleged breach of a covenant of seizin, and from a judgment for plaintiffs, defendant appealed.

On 24 June, 1920, plaintiffs purchased the Cartwright land, containing some forty acres, from defendant for $40,000. The deed contained a covenant by defendant, “that he was seized of said premises in fee and had full right to convey the same in fee simple.”

The plaintiffs alleged that defendant had, and conveyed only, title to a six-sevenths undivided interest in said lands, and that the children of John G. Hinton, defendant’s deceased brother, owned an outstanding one-seventh interest. The defendant alleged that he owned the entire interest and that there was no breach of the covenant sued on.

The defendant also alleged, and offered to prove, that the plaintiffs conveyed the lands in controversy, with usual warranty, 6 February, 1923, and, therefore, they could not now maintain this action, which was instituted 24 January, 1923.

The evidence showed that this land was purchased by John L. Hinton from Mary E. Cartwright, administratrix of Samuel Cartwright, in 1889, and that John L. Hinton died in 1909, leaving surviving him the following children: O. L. Hinton, W. E. Hinton, E. Y. Hinton, R. L. Hinton, Ida Sawyer, and Mary F-. Hinton, and three children of a deceased son, John C. Hinton, as follows: Sophia Morgan, Flossie Nosay, and Ada Whitehurst.

Plaintiff introduced a deed from Mary F. Hinton, C. L. Hinton; E. Y. Hinton, W. E. Hinton, and Ida Sawyer and husband, L. R. Sawyer, to R. L. Hinton, dated 1 February, 1912, and registered 29 January, 1913, conveying grantors’ “rights, titles, and interests” in the lands in controversy for $12,500. This deed has, immediately after the description, the following statement: “The interests hereby conveyed is five-sixths of the said tract of land, and R. L. Hinton, having heired a one-sixth interest in said land, is now owner of the entire tract.” The evidence is plenary that the defendant paid the purchase price recited in this deed.

It further appeared that John L. Hinton left a will, which was duly probated in common form in the Superior Court of Pasquotank County, 29 January, 1910. On 30 September, 1918, a caveat was- filed to this will of John L. Hinton. The citations were issued 9 October, 1918. *110Tbe grounds of attack in tbe caveat were undue influence and want of sufiicient mental capacity. Tbe issues arising upon tbe caveat were tried at July Term, 1920, Pasquotank Superior Court, resulting in a verdict on botb grounds for tbe caveators. On appeal to tbe Supreme Court, tbe judgment was affirmed. In re Hinton, 180 N. C., 206, Fall Term, 1920. Tbis record, including tbe opinion of tbe Supreme Court, appears to bave been introduced in evidence at tbe trial below. Tbe verdict was as follows:

“1. Was defendant seized of and owner in fee of tbe entire tract of land described in tbe complaint at tbe time be executed deed to tbe plaintiffs? A. No.

“2. If not, of wbat part was be seized and tbe owner of? A. Six-sevenths.

“3. Wbat damages, if any, are plaintiffs entitled to recover of defendant? A. One-seventb of $40,000, witb interest from 24 June, 1920.”

These-issues were submitted by tbe court without objection.

Tbe court, after giving tbe contentions of tbe parties as to tbe purchase price, charged that tbe measure of damages was tbe purchase price and interest, and that, upon a failure of one-seventb interest, it would be one-seventb of tbe purchase price witb interest from 24 June, 1920.

Tbe defendant excepted to tbe following portion of bis Honor’s charge: “I instruct you that if you find by tbe greater weight of tbe evidence tbe facts to be as testified to by tbe witnesses, you will answer tbe first issue No,’ and tbe second issue, 'Six-sevenths.’ ”

Defendant’s exceptions to tbe exclusion of evidence do not show wbat tbe defendant expected to prove, except tbe deeds from the plaintiffs to I. M. Meekins, each for a one-half undivided interest, and a deed of trust to one Gather, trustee, executed prior to tbe sale to Meekins, for $20,000, which was assumed by Meekins in tbe purchase.

It appeared that tbe plaintiffs received from tbe sale to Meekins $30,000 for tbe Cartwright land.

Tbe defendant asked tbe court to instruct tbe jury as follows:

“1. That if tbe jury believes tbe evidence, tbe deed from E. V. Hinton and others to R. L. Hinton, dated 1 February, 1912, recorded in Book 37, p. 259, was valid to convey five-sixths undivided interest to R. L. Hinton, and that tbe said R. L. Hinton was a purchaser for value in good faith for tbe five-sixths interest.

“2. Tbe jury is instructed that tbe failure or breach of tbe covenant of seizin was only one-seventb of one-sixtb, to wit, tbe interest of R. L. Hinton, one-sixtb; and that as John L. Hinton bad seven children, tbe interest of one child, to wit, one-seventb, .was not conveyed, so that there was outstanding unsold only one-seventb of one-sixtb interest in *111tbe Cartwright property sold to tbe plaintiffs, and tbe answer at most to the third issue would be one-forty-second of $40,000.

“3. If tbe jury believe tbe evidence tbe plaintiffs have sold their entire title and estate to tbe property described in tbe deed of R. L. Hinton to them since this action was begun, and have suffered no damage, and tbe jury will answer nothing to third issue.

“4. If tbe jury believe tbe evidence tbe defendant in any computation of tbe purchase price must consider only $40,000 paid to Morris was paid to him for bis bargain with tbe defendant Hinton, and not as a part of tbe purchase price at which tbe defendant Hinton agreed to sell tbe land.”

Tbe court refused these requests and, from tbe judgment rendered upon tbe verdict, tbe defendant appealed.

Aydlett & Simpson for plaintiffs.

W. I. Halstead and Manning & Manning for defendant.

YaRseb, J.

We are precluded from passing upon tbe merits of defendant’s objections to tbe evidence, since tbe record does not disclose what tbe witnesses would have said if tbe questions bad been allowed. Tbe burden is on tbe appellant to show error, and, therefore, tbe record must show tbe competency and materiality of tbe proposed evidence. This Court will not do tbe vain thing to send a case back for a new trial when it does not appear what tbe excluded evidence is, or even that tbe witnesses would respond to tbe questions in any way material to tbe issues. This is tbe established practice in this Court, in both civil and criminal cases. Whitesides v. Twitty, 30 N. C., 431; Bland v. O'Hagan, 64 N. C., 471; Street v. Bryan, 65 N. C., 619; S. v. Purdie, 67 N. C., 326; Knight v. Killebrew, 86 N. C., 402; Sumner v. Candler, 92 N. C., 634; S. v. McNair, 93 N. C., 628; S. v. Rhyne, 109 N. C., 794; Baker v. R. R., 144 N. C., 40; Boney v. R. R., 155 N. C., 95; Stout v. Turnpike Co., 157 N. C., 366; Dickerson v. Dail, 159 N. C., 541; Fullwood v. Fullwood, 161 N. C., 601; In re Smith’s Will, 163 N. C., 466; Wallace v. Barlow, 165 N. C., 676; Lumber Co. v. Childerhose, 167 N. C., 40; Brinkley v. R. R., 168 N. C., 428; Morton v. Water Co., 168 N. C., 582, 587; Wilson v. Scarboro, 169 N. C., 654; Schas v. Assurance Society, 170 N. C., 421; In re Edens, 182 N. C., 398; Snyder v. Asheboro, 182 N. C., 708; S. v. Jestes, 185 N. C., 735; Hosiery Co. v. Express Co., 186 N. C., 556; S. v. Ashburn, 187 N. C., 717, 722; Barbee v. Davis, ibid., 79, 85; Smith v. Myers, 188 N. C., 551; S. v. Collins, 189 N. C., 15.

While tbe court refused to give tbe defendant’s fourth prayer for instructions, tbe action of tbe court has not prejudiced tbe defendant, because tbe jury has accepted this view and has found tbe purchase *112price to be $40,000. If any error was committed in this regard, it is clearly harmless.

The deeds of plaintiffs to Meekins were not competent evidence at the instance of the defendant, since they and the other evidence did not show any basis for a contention that the plaintiffs received complete reimbursement to the extent of the purchase price paid Hinton when they sold to'Meekins. The covenant of seizin does not run with the land, and is broken when the deed is delivered, if the grantor does not own the lands according to his covenant, the right of action accrues at once to him, and to him alone. Eames v. Armstrong, 142 N. C., 506, 515; Markland v. Crump, 18 N. C., 94; Wilder v. Ireland, 53 N. C., 85, 90; Britton v. Ruffin, 123 N. C., 67; Jones on Covenants, sec. 851; Pridgen v. Long, 177 N. C., 189; Wilson v. Vreeland, 176 N. C., 504; Webb v. Wheeler, 17 L. R. A. (N. S.), 1178, 1183, and citations noted; Cover v. McAden, 183 N. C., 642; Meyer v. Thompson, 183 N. C., 545; Lockhart v. Parker, 189 N. C., 138; Eawle on-Covenant for Title, ch. 10, sec. 202; Mordecai’s Law Lectures, 901.

The difference in the purchase price paid to the defendant and the purchase price received from Meekins is more than the amount sued for; hence, there can arise no equity for defendant from this sale.

The covenant of seizin is, when broken, a chose in action, not assignable at common law, and this rule still obtains. Mordecai’s Law Lectures, 859, 860; Eames v. Armstrong, supra; Lockhart v. Parker, supra; Grist v. Hodges, 14 N. C., 198, 202; Shankle v. Ingram, 133 N. C., 254.

The defendant’s contention that he is a purchaser for value and without notice from his brothers and sisters, under the deed in 1932, cannot be sustained. It appears from the record, which includes the opinion in In re Hinton, 180 N. C., 206, that the defendant, E. L. Hinton, cannot assume now the position of a purchaser for value, without notice of the rights of the children of John C. Hinton, deceased, to attack the will of their grandfather with success. This prevents us from considering whether the doctrine announced in Newbern v. Leigh, 184 N. C., 166, applies, in any event, to a devisee in a will that is subsequently set aside upon a caveat, when such a devisee is an heir at law of the maker of the contested will.

The rule of damages in a breach of a covenant of seizin is the purchase price, with interest. This still remains the rule, when the breach is a partial failure of the title. Wilson v. Forbes, 13 N. C., 40; Eames v. Armstrong, supra; 7. R. C. L., 1175, sec. 93; Mordecai’s Law Lectures, 899; Price v. Deal, 90 N. C., 291; Crowell v. Jones, 167 N. C., 286.

The plaintiffs have only sued for the proportion of the original purchase price represented by the failure of title. Hartford Ore Co. v. *113 Miller, 41 Conn., 112; Guthrie v. Prigslie, 12 N. Y., 126; Rawle on Covenants, secs. 186, 187; 7 R. C. L., 1170, sec. 87; 24 A. L. R., 267; Campbell v. Shaw, 170 N. C., 186; Lemly v. Lilis, 146 N. C., 221.

If the plaintiffs bad bought the outstanding interest, then the measure of damages would be the amount expended therefor, with interest, not exceeding, in any event, the pro rata of the original purchase price. Lemly v. Ellis, supra; Campbell v. Shaw, supra.

We are of the opinion that the trial court was correct in the instructions given to the jury, and, therefore, there is

No error.